Allahabad High Court
C/M Motilal Memorial Society vs State Of U.P Thru Principal ... on 11 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1191
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 13.02.2020 Delivered on: 11.06.2020 A.F.R. Case :- MISC. SINGLE No. - 4528 of 2010 Petitioner :- C/M Motilal Memorial Society Respondent :- State Of U.P Thru Principal Secy.,Firms,Socities And Chits, Counsel for Petitioner :- Dr.L.P.Mishra,Prasant Singh Atal,Ramesh Kr. Singh,Ramesh Pandey,Sarvesh Kumar Dubey,Sharad Pathak,Uttam Kr. Srivastava,Vinod Kr. Singh,Virendra Singh Chandel,Vivek Raj Singh Counsel for Respondent :- C.S.C,Anupam Mehrotra,Apoorva Tiwari,M.B.Singh,Prasant Singh,Sandeep Dixit,Shree Prakash Singh,Vikas Vikram Singh. CONNECTED WITH: (1) Case :- MISC. SINGLE No. - 367 of 2012 Petitioner :- Moti Lal Memorial Society Moti Mahal 2rana Pratap Marg& Ors. Respondent :- State Of U.P.Through Principal Secretary And Others Counsel for Petitioner :- Vivek Raj Singh,Dr. L.P. Mishra,Sarvesh Kumar Counsel for Respondent :- C.S.C.,Amar Nath Dubey,Amit Jaiswal,Apoorva Tiwari,Kartikey Dubey,M.B. Singh,Sandeep Dixit,Shree Prakash Singh,Vikas Vikram Singh (2) Case :- MISC. SINGLE No. - 430 of 2012 Petitioner :- Moti Lal Memorial Society Moti Mahal 2rana Pratap Marg &Ors. Respondent :- State Of U.P. Through Principal Secretary And Others Counsel for Petitioner :- Vivek Raj Singh,Dr. L.P. Mishra,Sarvesh Kumar Counsel for Respondent :- C.S.C.,M.B. Singh,Manoj Kr. Tripathi,Sandeep Dixit,Shree Prakash Singh; (3) Case :- MISC. SINGLE No. - 918 of 2013 Petitioner :- Motilal Memorial Society Thr. President Vimal Kumar Sharma Respondent :- Registrar, Firms, Societies And Chits, Lucknow Region & Ors. Counsel for Petitioner :- Shashank Dhaon Counsel for Respondent :- C.S.C.,Sarvesh Kumar Dubey; Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard Dr. L.P. Mishra, Advocate, assisted by Sri Sarvesh Kumar Dubey, Advocate and Sri Vivek Raj Singh, learned Senior Advocate, for the petitioners in Writ Petition No.4528 (M/S) of 2010, Writ Petition No.367 (M/S) of 2012, in Writ Petition No.430 (M/S) of 2012 and Sri Prashant Chandra, learned Senior Advocate, assisted by Sri Kartikey Dubey for the private respondents- Vimal Kumar Sharma (now Dead) and some of the members of the Society who have filed an application for dismissal of the aforesaid writ petition. Sri Madan Mohan Pandey, learned Additional Advocate General assisted by Sri Sashank Bhasin, appears for the State-respondents.
2. This bunch of four petitions have been filed relating to a dispute of Motilal Memorial Society, the parent Society situated at Motimahal, Rana Pratap Marg, Lucknow. Motilal Memorial Society (hereinafter referred to as ''the Society') was brought into being by Former Chief Minister of the State of U.P., Sri Chandra Bhanu Gupta along with other like minded people as an Educational and Charitable Society. The Society has vast resources and runs 13 Institutions in the State.
As per the Bye-laws of the Society, detailed reference of which shall be made at the appropriate place. A Governing Council of 17 members, 13 of whom being Foundation/Life Members, and the rest four being elected, act as the Committee of Management of the Society. The main office bearers of the Society are the President, a Foundation Member, who also acts as the Chief Executive Officer, a Vice President, an Honorary General Secretary, who also is a Foundation Member, along with a Joint Secretary and Treasurer. The Committee of Management is elected from amongst the members of the Governing Council and its tenure is of three years or till such time that the newly elected Committee of Management takes over charge. The last undisputed election of the office bearers took place on 22.7.2005.
3. In the election held on 22.7.2005, Vishnu Bhagwaan Agarwal was elected as General Secretary, Vimal Kishore Sharma was elected as Vice President and Nagendra Nath Singh was elected as President of the Society.
4. Before such elections were finalized one Dr. Ram Krishna, who was dissatisfied with the process of election, filed Writ Petition No.3740 (MS) of 2005: Dr Ram Krishna versus Registrar, Firms, Societies and Chits, Lucknow and two others, which was dismissed by this Court on 7.7.2005. While dismissing the writ petition, the Court had observed that the petitioner was free to approach the Registrar to exercise his power under Section 25(2) of the Act, who would then take appropriate action in the matter. Dr. Ram Krishna moved a representation before the Registrar on 3.8.2005. The Registrar invoked the provisions of sub-section (2) of Section 25 of the Act and nominated the Deputy Registrar to act as an Election Officer for holding the elections of the Governing Council of the Society. This order was issued in ignorance of the fact that election had already taken place on 22.7.2005.
5. The General Secretary, Vishnu Bhagwaan Agarwal sent a letter to the Registrar, informing him about the meeting of the Governing Council held on 22.7.2005 and election of new office bearers and requested for cancellation of the order dated 3.8.2005. The Registrar on receiving the representation dated 12.8.2005 of the General Secretary Vishnu Bhagwaan Agarwal, after due verification, was satisfied about the legality of the elections held on 22.7.2005 and of the newly constituted Governing Council. Consequently, the Registrar withdrew the order dated 3.8.2005 by the order dated 8.9.2005.
6. Dr. Ram Krishna filed a regular suit registered as Regular Suit No.603 of 2005 for declaration and permanent injunction in the Court of Civil Judge (Senior Division), Lucknow. The Society was represented through its General Secretary Vishnu Bhagwaan Agarwal. Neither the Registrar or the Deputy Registrar whose actions, nor the President and other office bearers of the Society, whose election was being challenged, were impleaded as defendants in this Suit. Along with the Suit, an application for Temporary Injunction was moved for restraining the defendants from implementing the decisions of the Governing Council taken on 22.7.2005 and 14.8.2005 till valid elections take place under the direction of the Registrar dated 3.8.2005. Written statement as well as objection to the application for Temporary Injunction was filed on behalf of the Society by Vishnu Bhagwaan Agarwal.
7. During pendency of the said suit by Dr. Ram Krishna, the Governing Council was called for a meeting through notice dated 10.3.2007 by the General Secretary, who substituted the original 27 items of the Agenda approved by the President by a list of 38 items without the prior approval of the President Nagendra Nath Singh. On 30.5.2007, Nagendra Nath Singh issued a notice to Vishnu Bhagwaan Agarwal regarding several acts of forgery done by him for personal benefit at the cost of the Society and the fraudulent activities of his having been noticed, he was asked to submit his reply. The notice dated 30.5.2007 was sent through registered post.
8. Vishnu Bhagwaan Agarwal managed to hold a meeting in the meanwhile where Nagendra Nath Singh was removed as President. Nagendra Nath Singh approached the Registrar against such action. After the Registrar passed the order dated 7.7.2007, cancelling the proceedings of the meeting held on 27.4.2007 and 19.5.2007 in regard to election of new President in place of Nagendra Nath Singh, and declaring that the Committee registered earlier in his office on the election held on 22.7.2005 was valid for the remaining term; Vishnu Bhagwaan Agarwal, the Secretary of the Society preferred a Writ Petition bearing No.3299 (MS) of 2007: Motilal Memorial Society and others versus State of U.P. and others, challenging the order passed by the Registrar on 7.7.2007. On 10.7.2007, this Court was pleased to stay the implementation of the order dated 7.7.2007.
9. Nagendra Nath Singh challenged the interim order dated 10.7.2007 in Special Appeal No.615 of 2007. On 17.7.2007, the aforesaid Special Appeal was disposed of finally, restraining the opposite party nos.4 and 5 of the Special Appeal to take any policy decision relating to the financial and other interests of the Society. A request was made to the learned Single Judge to decide the writ petition expeditiously.
10. Despite service of notice on Vishnu Bhagwaan Agarwal, Vimal Kumar Sharma and Narsingh Narain Tewari, they failed to reply to the notice and were issued two reminders on 5.2.2008 and 1.3.2008 again by registered post. Ultimately on 15.3.2008, in a meeting of the Governing Council, a resolution was passed, expelling opposite party nos.4, 5 and 6 from Foundation Membership of the Society in exercise of power under Rule 10(1)(d) and 10(1)(e) and Rule 10(2).
11. This Court dismissed Writ Petition No.3299 (MS) of 2007 filed by Vishnu Bhagwaan Agarwal by its order dated 15.2.2008. The Court was pleased to observe that the removal of Nagendra Nath Singh from the office of the President in exercise of power under Rule 23(b) of the Rules of the Society, which relates to reduction of term coupled with the fact that the decision relating to removal of Nagendra Nath Singh was not in the Agenda of the meeting circulated on 27.4.2007, was in utter disregard of the directions issued by the President of the Society. The Court affirmed the order passed by the Registrar. This Court observed that it was irrelevant to consider whether power under Sections 24 or 25 of the Act could have been exercised by the Deputy Registrar. If the order passed by the Deputy Registrar was cancelled by the Court, it would amount to putting the seal of the High Court over the illegal action of certain members of the Society through meeting dated 24.4.2007.
12. After the dismissal of the writ petition filed by Vishnu Bhagwaan Agarwal on 15.2.2008, Vishnu Bhagwaan Agarwal entered into a collusive compromise with Dr. Ram Krishna in order to frustrate the judgment of this Court dated 15.2.2008 and the counsel for the two parties made a statement before the Civil Judge (Senior Division) Lucknow that it had been agreed upon between the parties that an order be passed, directing the Registrar to hold the election in exercise of his power under Section 25(2) of the Act.
13. Nagendra Nath Singh filed Writ Petition No.1336 (MS) of 2008, challenging the order passed by the Civil Judge (Senior Division), Lucknow on 19.2.2008 and also praying for a mandamus commanding the opposite parties not to interfere in the peaceful functioning of office bearers of the Governing Council of the society duly elected in its meeting held on 22.7.2005.
14. One of the members of the Governing Council Veer Sen also filed Writ Petition No.1902 (MS) of 2007 challenging the order passed by the Civil Court and also the order dated 16.3.2008 passed by the Deputy Registrar, recognizing the result of an alleged election held on 16.3.2008, in purported compliance of Civil Court's judgment and order dated 19.02.2008.
15. Both the writ petitions were connected and heard together and finally allowed by this Court by an order dated 12.8.2008. However, this Court also issued a direction that the office bearers elected on 22.7.2005 shall continue in a routine manner, but for a period of one month only. The Registrar was directed to ensure that the office bearers elected on 22.7.2005 shall conduct the election within a period of one month from the date of the order. In case the Society failed to hold the election within time, the Registrar was to conduct the election of the Society under Section 25(2) of the Act.
16. In the judgment and order dated 12.8.2008, this Court made certain adverse observations against the conduct of opposite party nos.4, 5 and 6 and it was held that they were guilty of committing fraud and resorting to deliberate concealment and misrepresentation of facts in obtaining the order from the Civil Judge (Senior Division), Lucknow. It was further held that Vishnu Bhagwaan Agarwal was not competent to enter into a compromise in the Suit without getting the prior approval of the Governing Council. It was also observed that he was not the General Secretary on the date of the compromise. It is apparent from the judgement and order dated 12.08.2008 that the expulsion of opposite party nos.4, 5 and 6 was within the knowledge of this Court at the time of passing of the order.
17. Taking undue advantage of the directions of the Court that the current office bearers will be competent to hold the elections of the Governing Council within one month from the date of the order, Vishnu Bhagwaan Agarwal started acting as the Secretary of the Society on the basis of election held on 22.7.2005.
18. A Review Petition No.184 of 2008 was filed by Nagendra Nath Singh, mainly on two grounds that Vishnu Bhagwaan Agarwal had started claiming himself to be the General Secretary and was not returning the records of the Society despite his expulsion on 15.3.2008, and also on the ground that the Registrar could only supervise the election that was to be held by the Governing Council of the Society itself as no fault had been found by the Court in the elections held on 22.7.2005. Two more review petitions were filed by Vishnu Bhagwaan Agarwal and Dr. Ram Krishna. Review Petition Nos.161 of 2008, 166 of 2008 and 184 of 2008 were all connected and heard together. This Court passed an interim order on 17.9.2008, restraining the opposite party no.4-Vishnu Bhagwaan Agarwal from claiming himself to be the General Secretary of the Society or to discharge any duty in that capacity.
19. Review Petition No.184 of 2008 was partly allowed on 20.10.2008, while Review Petition Nos.161 of 2008 and 166 of 2008 were both dismissed. The Court held that the Governing Council under the Chairmanship of the President elected on 22.7.2005 shall conduct election of the different constituents of the electoral body so as to fill up the vacancies of the Foundation Members and four other members. After the elections of different constituents of Governing Council, election shall be conducted for office bearers of the Society. The Registrar or the Deputy Registrar was to supervise the elections to ensure fairness and transparency in the conduct of the election. He was directed not to create any hindrance in the election of the office bearers to be held by the Governing Council. Till the new office bearers took charge, the office bearers, who were elected by the Governing Council on 22.7.2005 would continue to carry out the day-to-day administration of the Society.
20. In pursuance of such directions, three vacancies on the expulsion of Vishnu Bhagwaan Agarwal, Narsingh Narain Tiwari and Vimal Kumar Sharma were filled up on 5.12.2008 by inducting Sri Ram Arun, Kunwar Reoti Raman Singh and Raja Anand Singh, as Foundation Members of the Society. Vishnu Bhagwaan Agarwal, in the meantime, had given an application on 22.12.2008 to the Deputy Registrar to set aside the resolution dated 15.3.2008 on his own behalf, stating that the representation is also on behalf of opposite party nos.5 and 6. The representation was not signed by the opposite party nos.5 and 6. The representation was not being decided. Vishnu Bhagwaan Agarwal therefore filed the Writ Petition No.2353 (M/S) of 2010, concealing the fact that the election had already been held in pursuance of the orders passed by this Court, on 31.12.2008, and without impleading the new office bearers. The said writ petition was disposed of by this Court on 28.05.2010, directing the Deputy Registrar to decide the pending Application of the opposite party nos.4, 5 and 6 in accordance with law.
21. The Deputy Registrar issued notice to Nagendra Nath Singh on 31.3.2009 even before this Court passed the order dated 28.05.2010. Nagendra Nath Singh filed his reply on 29.5.2009, mentioning that by the judgment of this Court on 20.10.2008 passed in Review Petition No.184 of 2008, this Court had observed in Paragraph-23 that even without putting the seal of approval on the resolution dated 15.3.2008, the said resolution had legal sanctity because for each and every business of the Governing Council, the seal of the Court is not required and every act or resolution of the Society or the Governing Council is to take effect in the ordinary course of business. It was alleged further that the Deputy Registrar did not have any power under the Act to decide the validity or otherwise of a resolution passed by the Society, expelling an office bearer in terms of its own bye-laws. The notice issued by the Deputy Registrar to the President of the Society was without jurisdiction. It was also mentioned in the reply that the opposite party nos. 4, 5 and 6 were given sufficient opportunity of hearing, but they did not avail the same. The opposite party no.4, 5 and 6 were acting against the interest of the Society, they were therefore, expelled from the Foundation Membership of the Society.
22. Professor Lal Amrendra, who was elected as General Secretary of the Governing Council on 31.12.2008 was also acting against the interest of the Society. The President on 14.8.2009 suspended him and issued a show cause notice to him on 3.9.2009. Ultimately, he was removed as Foundation Member of the Society on 24.2.2010 and on 4.3.2010, information regarding expulsion of Professor Lal Amrendra was sent to the Registrar.
23. On 24.7.2010, an application for adjournment was filed by Nagendra Nath Singh before the Deputy Registrar, bringing to his notice that a recall application had been filed against the judgment dated 28.5.2010 in Writ Petition No.2353 (M/S) of 2010, which was pending disposal before the appropriate Court. As such, no order be passed deciding the representation of Vishnu Bhagwaan Agarwal in the meanwhile. Through the said application, again an objection was also taken before the Deputy Registrar that he had no jurisdiction at all to take any decision on the expulsion of opposite party nos.4, 5 and 6. Ignoring such request, the Deputy Registrar by the order dated 26.7.2010, set aside the resolution of the Governing Council dated 15.3.2008, expelling opposite party nos.4, 5 and 6 as Foundation Members of the Society. The Writ Petition No.4528 (M/S) of 2010 was filed challenging the order dated 26.07.2010.
24. On the first day of hearing on 11.08.2010 the Court directed the matter to be listed along with the records of the Petition No.1902 (M/S) of 2008, with Writ Petition No. 1336 (M/S) 2008, Writ Petition No.2353 (M/S) of 2010, Writ Petition No.3299 (M/S) of 2007 and Review Petition No.161 of 2000, Review Petition No.166 of 2008 and 184 of 2008.
25. The Deputy Registrar in his order dated 26.07.2010 recorded a finding that in the Proceedings Register, after the proceedings dated 13.06.2007, proceedings dated 26.03.2008 were recorded, and thereafter proceedings dated 18.06.2007 were mentioned, which created a doubt on the genuineness of the Proceedings Register. This act of the Deputy Registrar was designed to give benefit to the Opposite Parties Nos.4, 5 and 6, as the main case of the petitioners before the Opposite Party No.3 after the eruption of dispute on 27.04.2007 was that the Opposite Party No.4 was withholding the records of the Society. The Proceedings Register came into the possession of the genuine office bearers only when a direction was issued by the Court in Review Petition on 17.09.2008. It has been submitted that when the original Proceedings Register was in the possession of Opposite Party No.4 the proceedings of the Governing Council of the Society were being transcribed on separate sheets of paper which were pasted on the original Proceedings Register after the present petitioners secured custody of the Proceedings Register.
26. The second ground taken by the Deputy Registrar was that the Petitioner No.2 did not inform the Deputy Registrar regarding expulsion of Opposite Parties Nos.4, 5 and 6 while submitting his objection on 10.03.2008. It has been submitted that the Petitioner No.2 could not have any knowlege of the future events that were to take place on 15.03.2008. He had no reason to mention the fact of expulsion of the Opposite Parties Nos.4 to 6 on 10.03.2008 as on 10.03.2008 only notice has been issued to the Opposite Parties to appear before the Governing Council, to submit their replies to satisfy it regarding their innocence.
27. The third ground taken by the Deputy Registrar for declaring the proceedings dated 15.03.2008 as void was that no application for registration of the proceedings dated 15.03.2008 had been made to the Deputy Registrar. It has been submitted that there is no provision under the Societies Registration Act to seek the registration of every proceeding relating to internal matters of the Society by the Deputy Registrar. It has been submitted that the Deputy Registrar had no jurisdiction at all to pass the order dated 26.07.2010. The Opposite Parties Nos.4 to 6 were the persons who were responsible for creating a dispute in the functioning of the Society for their vested interest. This fact was recorded by this Court in its judgement and order dated 15.02.2008 and in its judgements and orders dated 12.08.2008 and 20.10.2008.
28. Applications for dismissal of the writ petition at the threshold as not maintainable was filed on behalf of opposite party no.4-Vishnu Bhagwaan Agarwal and opposite Party No.5-Vimal Kumar Sharma. In the affidavit filed in support of such application, a preliminary objection regarding maintainability of the writ petition, it was submitted that under Rule 12 (1) the affairs of the Society shall be run under the control and supervision of the Governing Council. Under Rule 12 (2) the Governing Council could institute, conduct, defend, compound or abandon any legal proceedings by or against the Society. Under Rule 12 (3) the Governing Council may delegate all or any of its powers to any person. Under Rule 25 the Society could sue or be sued against, in the name of the Honorary General Secretary, or such other person who may be nominated by the Governing Council for the said purpose. In this case the General Secretary had not filed the writ petition. Nagendra Nath Singh was the President and he had not been authorized by the Governing Council to file the writ petition. The Governing Council in its Meeting dated 22.07.2010 attended by 10 members had dis-associated itself from the matter regarding expulsion of three Foundation members that was pending before the Registrar. The minutes of the meeting dated 22.07.2010 have already been filed as Annexure to the paper book.
29. It seems that the Governing Council after due consideration had taken a decision that the President Nagendra Nath Singh should defend the matter of Vishnu Bhagwaan Agarwal as the counsel as a whole had no concern with the case. Writ Petition No.4528 (M/S) of 2010 remained pending disposal. In the meantime, the Deputy Registrar passed an order on 22.11.2011 observing that there were only ten Foundation Members left in the Society, who were Nagendra Nath Singh, Vishnu Bhagwaan Agarwal, Vimal Kumar Sharma. J.R. Tripathi, Justice Umesh Chandra Srivastava (Retd.), Dr. Dauji Gupta, Sri Uma Kant Mishra, Narain Dutt Tiwari, Mata Prasad and Narsingh Narain Tewari; and then observed that election of the Society should be held by the Foundation Members within the period in which it was authorized to hold such election and then to submit its list of members of the Governing Council under Section-4 of the Act.
In compliance of the Order No.1903 dated 22.11.2012, the President had issued two orders dated 22.11.2011 and 28.12.2011. The order dated 28.12.2011 was circulated to all Foundation Members the same day and the signatures were taken on the said notice. The Registrar was informed by a letter on the same day of the election programme.
30. In the letter dated 22.11.2011 reference was made to the Deputy Registrar's order to hold election and in the order dated 28.12.2011, an election schedule was announced. Firstly, elections were to be held on 15.1.2012 for filling up the vacant posts of Foundation Members. Elections for the elected members of the Society were to be held thereafter on 24.1.2012, and elections of office bearers of the Committee of Management were to be held on 31.1.2012. It has been submitted that once the orders were issued announcing the election programme by the Committee of Management whose tenure was upto 30.12.2012, then the Deputy Registrar did not have any power to pass an order under section 25(2) of the Act.
31. However, after notices were circulated and the Deputy Registrar duly informed on 28.12.2011 of the ensuing election programme, the Deputy Registrar passed the order on 10.1.2012, saying that the Committee of Management had become time barred and then passed the order dated 16.1.2012, freezing the operation of the bank account of the Society by the incumbent office bearers.
32. Writ Petition No.367 (MS) of 2012 against the order of the Deputy Registrar dated 10.01.2012 has been filed, arraying Vishnu Bhagwaan Agarwal, Vimal Kumar Sharma, Narsingh Narain Tiwari and Mata Prasad along with one Rajendra Pratap Singh Rajput, as private respondents. In the order dated 10.1.2012 issued under sub-section (2) of Section 25 of the Act by the Deputy Registrar had announced the schedule of elections of the Society to be held from 19.1.2012 to 9.2.2012 in three stages, ignoring the fact that the President of the Society had already issued election notice on 28.12.2011 under the order dated 22.11.2011 of the Deputy Registrar himself, of first filling up the vacancies of Foundation Members and of elected members of the Governing Council, and then for holding election of Committee of Management of the Society. It has been alleged that the notice of election dated 28.12.2011 had been duly served upon all Foundation Members personally, and they had signed the same except for Narain Dutt Tiwari on whom, notices were served through registered post. It has been alleged that even after sending of election programme by the Agenda dated 28.12.2011 before the expiry of the term of office bearers elected on 31.12.2011, the Deputy Registrar took cognizance of letters sent to him by opposite party nos.4 to 7 and a letter sent by opposite party no.8 on 7.1.2012, and without giving any opportunity of hearing to the President, the order was passed on 10.1.2012 by the Deputy Registrar under sub-section (2) of Section 25 of the Act.
33. In Writ Petition No.367 (MS) of 2012, the Society alleged that under Rule 23 sub-clause (d) of the bye-laws, the retiring office bearers could carry on discharging their duties until their successors in office were elected or appointed, as the case may be, and have taken over charge. Under the orders of this Court, the last undisputed elections were held on 31.12.2008 in which, the petitioners were elected as the Committee of Management. In view of Rule 23 sub-clause (d), the Committee of Management was entitled to continue till their successors in office were elected or appointed and had taken over charge. Since the General Secretary of the Society, Professor Lal Amrendra was expelled as a Foundation Member on 24.02.2010, Mrs. Usha Chaudhary, another Member of the Governing Council was designated as Joint Sectary and duly authorized to file a writ petition on behalf of the Society.
34. It has been submitted by the petitioners in their Writ Petition No.367 (MS) of 2012 that in pursuance of the order passed by the Deputy Registrar on 22.12.2011, the election programme was circulated on 28.12.2011 and it was not open for the Deputy Registrar in view of sub-clause (d) of Rule 23 to pass the order impugned allegedly under Section 25(2) of the Act, saying that the Committee of Management had become time barred and the order passed by the Deputy Registrar being without jurisdiction was liable to be set.
35. It has further been submitted by the petitioners that Section 25(2) of the Act gives the right to the outgoing Committee of Management to convene a meeting for the purpose of holding elections till such time that its tenure does not expire and till such time that Deputy Registrar expresses a satisfaction that the Committee of Management had become time barred. Only after completion of term of the office bearers, the Registrar can pass an order under Section 25(2) of the Act for convening a meeting of the General Body of the Society for the holding of fresh elections for the Committee of Management.
36. It has also been submitted that the Society runs 13 institutions in which, there is one institution in the name of Chandrabhanu Gupta Shiksha Evam Manav Vikas Kendra, Chandrawal. It is a School and Agricultural Farm situated at Chandrawal, Sarojini Nagar and one R.P. Singh Rajput was appointed as Manager by means of order dated 7.4.2011. Sri R.P. Singh Rajput was indulging in several illegal activities and, therefore, a show cause notice was issued to him on 19.11.2011. Sri R.P. Singh Rajput in his reply, accepted the fact of making unnecessary expenditure without taking prior approval. Nagendra Nath Singh, hence appointed one R.R. Chaturvedi as Coordinator of the Institute on 4.1.2012, but by means of the impugned order dated 10.1.2012, the Deputy Registrar has also accepted Sri R.P. Singh Rajput's representation that Nagendra Nath Singh had lost all his authority after 31.12.2011. The Deputy Registrar also accepted the name of the institute being changed unilaterally by Sri R.P. Singh Rajput, who is arrayed also as opposite party in Writ Petition No.367 (MS) of 2012.
The petitioners submit that the Deputy Registrar did not have any power to approve the change of the name of the Institution by exercising his power under Section 25(2) of the Act.
37. This Court on 17.1.2012, on mention being made, directed the writ petition to come up along with pending Writ Petition No.4528 (MS) of 2010. After hearing the matter for sometime, this Court directed that any action taken in pursuance of the order impugned dated 10.1.2012 will be subject to further orders of the Court. On 18.1.2012 when the matter was listed again for hearing, this Court observed that Writ Petition No.4528 (MS) of 2010 was already being heard by another coordinate Bench and, therefore, it directed the matter to be placed before the same Bench where the writ petitions was already being heard.
38. Writ Petition No.430 (MS) of 2012 has been filed against the order of the Deputy Registrar dated 16.01.2012 prohibiting the incumbent office bearers from operating the bank account of the Society. It has been filed by Motilal Memorial Society through its Joint Secretary Mrs. Usha Chaudhary, the President of the Society, and Sri Nagendra Nath Singh in his personal capacity. Besides State-respondents being made parties, the petitioners have arrayed as Vishnu Bhagwaan Agarwal, Vimal Kumar Sharma and Narsingh Narian Tiwari along with one Mata Prasad and Rajendra Pratap Singh Rajput as respondents, besides the UCO Bank, Branchs at Nawal Kishore Road and Charbagh as parties. By the order of the Deputy Registrar dated 16.1.2012, he directed the Bank Branches situated at Hazratganj and at Charbagh to stop the operation of bank accounts of the petitioner's Society as order had already been passed under Section 25(2) of the Society Registration Act on 10.1.2012. The Deputy Registrar in his order dated 16.1.2012 stated that other Foundation Members had objected to the operation of the accounts by Nagendra Nath Singh and Mrs. Usha Chaudhary.
39. The order dated 16.1.2012 has been challenged on the ground that it is without jurisdiction, as there is no power vested in the Deputy Registrar to freeze the bank accounts of the Society after order is passed under Section 25(2) of the Act. Professor Lal Amrendra, the General Secretary of the Society was suspended on 14.8.2009 and terminated from Foundation Membership on 24.2.2010. The President in exercise of his powers vested in him in the absence of the Governing Council, had appointed Mrs. Usha Chaudhary as Joint Secretary on 14.8.2009 and authorized Mrs. Usha Chaudhary to file the writ petition pending approval from the Governing Council as and when it was convened and its meeting was held.
40. In this writ petition, on the first day of hearing on 9.2.2012, this Court issued notice to the private respondent nos. 4 to 10 and directed the matter to be listed again on 13.2.2012. Thereafter, no orders were passed except that of connection of the writ petition with the leading case i.e. Writ Petition No.367 (MS) of 2012.
41. On 13.2.2012, this Court appointed Mr. Justice Khem Karan, a retired Judge of this Court and retired Director General of Police Sri Ram Arun, IPS, as an Interim Committee to manage the affairs of the Society, including Institutions run by it, it's employees, students etc. till disposal of Writ Petition No.367 (MS) of 2012, Writ Petition No.430 (MS) of 2012, Writ Petition No.4528 (MS) of 2010 and Writ Petition No.5443 (MS) of 2005. The President and the Joint Secretary of the former Committee of Management as well as other persons, who were in possession of the records of the Society and Institutions run by it were directed to hand over the same to the Interim Committee forthwith after making an inventory of the same. The matter was directed to be listed for further hearing.
42. In pursuance of the interim order of this Court dated 13.2.2012, the Interim Committee of Justice Khem Karan (Retd.) and Shri Ram Arun took over charge of the Society on 21.2.2012.
43. On 21.2.2012, an impleadment application was filed by Professor Lal Amarendra, namely, Application No.17772 of 2012, praying for impleadment as opposite party no.9 in the writ petition. Professor Lal Amrendra stated in his affidavit that Mrs. Usha Chaudhary had no right to file the petition and only the Honorary General Secretary or such other person, who may be nominated by the Governing Council could file the writ petition. Mrs. Usha Chaudhary had not been nominated by the Governing Council to file the writ petition. The applicant Professor Lal Amrendra's Civil Suit and his two writ petitions being pending against orders passed by the Governing Council and by the Deputy Registrar, he was entitled to be impleaded as opposite party no.9 in the writ petition. This application remained pending and now with the death of Professor Lal Amrendra on 17.12.2019, it has become infructuous.
44. On 17.9.2012, an application for dismissal of the writ petition was filed by opposite party no.4 Vishnu Bhagwaan Agarwal, saying that the writ petition filed on behalf of the Society through Mrs. Usha Chaudhary, Joint Secretary was not maintainable in view of Rule 25 of the Bye-laws. Nagendra Nath Singh was elected as President of the Governing Council on 31.12.2008 and his term came to an end on 30.12.2011. Moreover, he died on 25.8.2012. After the demise of Nagendra Nath Singh, there was no dispute left and the writ petition could not continue only for academic purpose.
45. Writ Petition Nos.4528 (M/S) of 2010, 367 (M/S) of 2012 and 430 (M/S) of 2012, were dismissed for non-prosecution on 07.01.2013. An application for restoration and recall of the order dated 7.1.2013 was filed on 10.1.2013 on behalf of the Society by Mrs. Usha Chaudhary, which remained pending. An application for dismissal of application for recall was then filed, stating that by means of order dated 11.1.2013, the Deputy Registrar has declared the result of elections held on 9.2.2012. The new office bearers had taken over charge as the Interim order granted by this Court on 13.2.2012 was discharged and the Interim Committee appointed on 13.2.2012 to look after day-to-day affairs of the Society stopped functioning on dismissal of the writ petition on 7.1.2013. The new office bearers of the Society had filed Writ Petition No.918 (MS) of 2013 against the order of the Deputy Registrar passed on 29.1.2013, restraining the new office bearers from taking any policy decision on financial matters during pendency of Recall Application in Writ Petition No.367 (MS) of 2012. This Court passed an order on 8.2.2013 connecting Writ Petition No.918 (MS) of 2013 with all pending writ petitions.
46. In Writ Petition No.918 (M/S) of 2013, the Motilal Memorial Society through its President Vimal Kumar Sharma approached this Court, challenging the order dated 29.1.2013 passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow, directing that only day-to-day affairs of the Society shall be managed by the Committee of Management, but no policy decision shall be taken by them. This order was passed on a representation moved by one Professor Lal Amrendra, wherein he had stated that there were legal infirmities in the election held in February, 2012.
47. In the said writ petition, the order of the Deputy Registrar was challenged on the ground that the Deputy Registrar was already aware of the fact that Writ Petition No.367 (MS) of 2012 had been dismissed for want of prosecution by this Court on 7.1.2013. The election that was held on 9.2.2012 under the orders of the Deputy Registrar himself had led to a Committee of Management being elected with Vimal Kumar Sharma as its President, Vishnu Bhagwaan Agarwal as its Secretary and Narsingh Narain Tiwari as its Vice President. On the dismissal of the writ petition by the order dated 7.1.2013, the elected Committee of Management of Vimal Kumar Sharma, Vishnu Bhagwaan Agarwal and Narsingh Narain Tewari moved a representation before the Deputy Registrar on 8.1.2013, enclosing a copy of the order dated 7.1.2013 and praying that result of elections of the Society held on 9.2.2012 be declared. On 11.1.2013, the Deputy Registrar declared the results of the elections and Vimal Kumar Sharma was elected as President, Vishnu Bhagwaan Agarwal was elected as General Secretary and Narsingh Narain Tiwari was elected as Vice President of the Society. It has been alleged that on 28.1.2013, Professor Lal Amrendra moved a representation before the Deputy Registrar, saying that the elections were disputed and the Deputy Registrar on mere asking of such member, directed the Committee of Management to file its reply and at the same time, passed the order impugned, by means of which, only day-to-day affairs of the Society were ordered to be managed by the Society, but no policy decision was directed to be taken.
48. It was submitted that the order dated 29.1.2013 was without jurisdiction as under Section 25(1) of the Society Registration Act, only the Prescribed Authority has the power, on a reference being made to it, either by the Registrar or by at least 1/4th members of the Society, to decide in a summary manner any dispute relating to election or continuance in office of the office bearers.
49. On the first day of hearing of Writ Petition No.918 (M/S) of 2013 as fresh, Sri Vivek Raj Singh, learned Advocate, appeared for opposite party no.3- Professor Lal Amrendra and submitted that Writ Petition No.367 (MS) of 2012 along with Writ Petition No.430 (MS) of 2012, Writ Petition No.4528 (MS) of 2010 and Writ Petition No.5443 (MS) of 2005 were being heard together and were listed on 7.1.2013. Due to non-appearance of counsel for the petitioners, the cases were dismissed in default. An application for recall was moved within two days and the said cases were now listed on 11.2.2013.
50. Sri Prashant Chandra, learned Senior Advocate, appearing for petitioners Vimal Kumar Sharma and others, on the other hand, argued that in case any application for recall had been moved in Writ Petition No.367 (MS) of 2012, the same was not maintainable, as the person making such application was not authorized to move it after the declaration of result and the new Committee of Management coming into existence.
51. This Court took into account the fact that in Writ Petition No.367 (MS) of 2012, this Court had constituted an Interim Committee of a retired High Court Judge and one retired Director General of Police to look into the affairs of the institutions run by the Society. The Deputy Registrar realising the complications and high stakes involved in the matter had subsequently recalled his order dated 11.1.2013 by which, result of election held on 9.2.2012 was declared. The Court on 08.02.2013, therefore, directed Writ Petition No.918 (MS) of 2013 to be connected with the bunch, the leading case of which was, Writ Petition No.367 (MS) of 2012. It seems that no orders were passed thereafter in Writ Petition No.918 (MS) of 2013.
52. Against the order dated 8.2.2013 passed by this Court in Writ Petition No.918 (MS) of 2013, a Special Appeal was filed by Vimal Kumar Sharma and others, namely, Special Appeal No.99 of 2013. The Division Bench requested the Writ Court for early disposal of application for Recall and also directed that all orders passed by the Deputy Registrar after taking over of the Society by the New Committee of Management at various stages consequent upon the dismissal of the writ petition in default, shall remain in abeyance and till the application for recall is decided, the New Committee of Management would also not take any decision on policy matters, which may be prejudicial to the interest of the Society. The Special Appeal was disposed of on 21.2.2013.
53. An application for disposal of application for recall was filed also by the petitioners. In the affidavit filed in support of such application the subsequent events like declaration of result by the Registrar on 11.01.2013 and taking over of charge by the newly elected Office bearers of the Society and the filing of Writ Petition No.918 (M/S) of 2013 by them challenging the order passed by the Deputy Registrar on 29.01.2013 and 08.02.2013 were brought on record. The order of the Court directing connection of Writ Petition Nos.918 (M/S) of 2013, along with Writ Petition No.367 (M/S) of 2013, Writ Petition No.430 (M/S) of 2012, and Writ Petition No.4528 (M/S) of 2010 being challenged in Special Appeal No.99 of 2013, was also brought to the notice of the Court.
54. An Application No.33998 of 2013 was filed in Writ Petition No.367 (M/S) of 2012 on behalf of Kunwar Reoti Raman Singh also by Sri Vivek Raj Singh on 09.04.2013, saying that the application for Recall of order dated 07.01.2013 had been filed by Mrs. Usha Chaudhary. Nagendra Nath Singh had died on 25.08.2012 and the applicant Kunwar Reoti Raman Singh was the Foundation member of the Society and was working as Vice President of the Society before the passing of the order impugned in the writ petition. Under Rule 24 sub-Rule 2 of the Constitution of the Society, the Vice President could exercise the powers of the President during his absence or when on leave. The President could also delegate any office functions, duties and powers to the Vice President for any specified time. Under the Byelaws Rule 23 (d) the Committee of Management whose tenure had expired on 30.12.2011, would continue to function till holding of fresh election and taking over charge by the newly elected Office bearers. Hence, a prayer was made in the application for permission to be granted to Kunwar Reoti Raman Singh to pursue the Writ Petition No.367 (M/S) 2012. This application remained pending.
55. Writ Petition No.4528 (M/S) of 2010 and Writ Petition No.367 (M/S) of 2012 were restored on 26.04.2013 and Writ Petition No.430(M/S) of 2012 was restored on 17.05.2013. This Court passed an order restoring the writ petition despite objections being raised by the counsel for the contesting-respondent Shri Anil Tiwari. This Court observed that before passing of the order dated 07.01.2013, the Court was considering the question of maintainability of the writ petition. The recall application having being filed, unless the writ petition was restored, the issue of maintainability of the writ petition could not be decided. Moreover, the Court observed that the Interim Committee appointed earlier by the Court dated 13.02.2012 would continue to function till further orders of the Court. In pursuance of the order dated 26.04.2013 the Interim Committee took over the affairs of the Society and the Institutions on 29.04.2013.
56. An Application No.61901 of 2013 was filed by Kunwar Reoti Raman Singh on 16.07.2013 for amendment in the writ petition praying that the name of Petitioner No.3 Nagendra Nath Singh in his personal capacity be deleted and in his place the name of the applicant Kunwar Reoti Raman Singh be substituted as Petitioner No.3. In the affidavit filed in support of such application the deponent stated that the membership of Professor Lal Amrendra had been restored by the Deputy Registrar by order dated 30.11.2012. From the time of suspension of Professor Lal Amrendra from the post of General Secretary till the time of his restoration on such post, Mrs. Usha Chaudhary who was Joint Secretary was assigned the duties of General Secretary and therefore was competent to institute the writ petition. In pursuance of Sub-clause (2) of Rule 24 in the absence of the President, the Vice President discharges the duties of the President. On death of Nagendra Nath Singh on 25.08.2012, Kunwar Reoti Raman Singh who was Vice President was liable to be substituted. In the proceedings dated 5.12.2008, Item No.2 showed that in the place of Vishnu Bhagwaan Agarwal, Shri Ram Arun, in the place of Vimal Kumar Sharma, Kunwar Reoti Raman Singh, in place of Narsingh Narain Tiwari, Raja Anand Singh had been inducted.
57. This application was filed on the basis of proceedings dated 05.12.2008 and 31.12.2008. In this application, the proceedings dated 31.12.2008, of the Society for elections have also been annexed which show Nagendra Nath Singh, Veer Sen, Chatra Pal Sharma, Virender Vikram, Raja Anand Singh, Professor Lal Amrendra, Mata Prasad, Kunwar Reoti Raman Singh, Shri Ram Arun, Justice (Retd.) Dinesh Kumar Trivedi and Mrs. Usha Chaudhary were present. Dr. Dauji Gupta, Justice (Retd.) Umesh Chandra Srivastava, Narain Dutt Tiwari, Umakant Mishra and J.R. Tripathi had informed that due to personal reasons they could not attend the meeting. In Elections that were held Nagendra Nath Singh was appointed as President, Kunwar Reoti Raman Singh was elected as Vice President, and Professor Lal Amrendra was elected as General Secretary, Shri Ram Arun was elected as Treasurer and Mrs. Usha Chaudhary was elected as Joint Secretary. This application too remained undisposed of.
58. After restoration of the Writ Petition No.367 of 2012 and a reiteration of earlier interim order for the Interim Committee to manage the affairs of the Society, the Deputy Registrar passed an order on 30.4.2013 recalling his order dated 11.01.2013, saying that it was subject to the order passed by the Court on Restoration application.
59. An objection to the amendment application was filed by the Opposite Party No.4 Vishnu Bhagwaan Agarwal through his counsel Apurva Tiwari saying that the term of office of the Committee of Management elected on 31.12.2008 had already expired and Kunwar Reoti Raman Singh had no right or locus to file the Amendment Application. Objections to the application for amendment filed by Kunwar Reoti Raman Singh were also filed by Opposite Party No.5 Vimal Kumar Sharma saying that under Rule 25 of the Byelaws litigation can be pursued only by the Secretary of the Society. Neither Nagendra Nath Singh nor Mrs. Usha Chaudhary could have filed a writ petition. Kunwar Reoti Raman Singh therefore, could not seek any amendment in the writ petition and substitution in place of Nagendra Nath Singh as Petitioner No.3.
60. On 27.08.2014 when the matter was being heard by another Hon'ble Single Judge a suggestion was made that the dispute in the writ petition may be decided by retired Justice Khem Karan, a member of the Interim Committee, the Court passed an order accordingly.
61. A Special Appeal No.572 of 2014 was preferred against the order dated 27.08.2014. The Special Appeal was dismissed on 25.09.2014 with the observation that the order dated 27.08.2014 had been passed with the consent of both the parties. Now that the counsel for the appellant submitted that there was no occasion for giving consent, the question, whether the appellant's counsel had given consent or not is a question of fact for which it would be open for him to approach the same Writ Court.
62. An application was therefore preferred for Review/recall of order dated 27.08.2014 with a prayer that the preliminary objection regarding maintainability of the petition be decided and that the writ petition be dismissed as having abated.
63. On the order of the Court dated 27.08.2014, a report was submitted by Justice Khem Karan on 29.10.2014, wherein he stated that out of the four petitions Writ Petition No.4528 (M/S) of 2010 challenging the order dated 26.07.2010 of the Deputy Registrar appears to be more important as the questions involved therein is whether the Deputy Registrar was justified in setting aside the expulsion of Vimal Kumar Sharma, Vishnu Bhagwaan Agarwal and Narsingh Narain Tiwari as Foundation members of the Governing Council of the Society and in restoring their membership, the second important writ petition is Writ Petition No.367 (M/S) of 2012 which involved the validity or otherwise of the Election schedule given by the Deputy Registrar and the elections that were held pursuant thereto in January and February 2012. The very same persons who had been expelled earlier and whose membership was restored on 26.07.2010 i.e. Vimal Kumar Sharma, Vishnu Bhagwaan Agarwal and Narsingh Narain Tiwari were elected as President and General Secretary and Vice President respectively in such elections. Four other persons were elected as members for a period of three years so as to complete the full strength of 17 members of the Governing Council. The remaining two Writ Petitions No.5443 (M/S) of 2005 relating to Election of 2005 filed by Sri Ramakrishna, and Writ Petition No.430 (M/S) of 2012 in regard to operation of accounts may now not be of much relevance after the Elections of 2008 and 2012 and Constitution of Interim Committee. Since Vimal Kumar Sharma was not agreeable to the terms as suggested by Kunwar Reoti Raman Singh and Professor Lal Amrendra no compromise was possible.
64. Justice Khem Karan in his report stated also that so long as the dispute with regard to membership of Vimal Kumar Sharma and two others is not settled and so long as these persons were unwilling to budge from the stand they were taking in the context of Election of 2012, there was no possibility of compromise.
65. Another Application No. 52702 of 2018 was filed on 07.05.2018, for vacation of Interim Order by the Opposite Party No.5 saying that the writ petitions were not maintainable as the term of the elected members had come to an end but by an interim order dated 13.02.2012 an Interim Committee was appointed to manage the day to day affairs of the Society. After the passing of the order dated 13.02.2012 Nagendra Nath Singh died on 25.08.2012, and the writ petition was consequently dismissed for non-prosecution on 07.01.2013. An Application for restoration was filed on 10.01.2013 and the writ petition was eventually restored on 26.04.2013. The Interim Committee of two members, as earlier constituted, took over charge again to manage the day to day affairs of the Society. On the death of Nagendra Nath Singh, the three writ petitions stood abated, although an application was preferred by Kunwar Reoti Raman Singh seeking amendment in the array of the parties and for substitution in place of Nagendra Nath Singh as Petitioner No.3, no orders were passed thereon. The Society was running 17 Charitable Institutions including Schools, Colleges, Hospitals, Museums, Libraries, Students Hostels and the like and all such Institutions required full-time Supervision and management by the elected members of the Society. It was not humanly possible for two member Interim Committee to look after and manage the affairs of the Society. Shri Ram Arun was reported to be confined to bed due to illness. The Balance Sheet for Financial year ending 31.03.2015 showed total receipts of more than Rs.27,00,00,000 (Rs.27 Crores) as income of the Parent Society. Other entities of the Society also have transactions running into crores of rupees. The Interim Committee is not being able to manage the affairs of the Society, in view of the vastness of the area of operations and the various activities and businesses in which the Society is engaged. Huge losses were being incurred by the Society, for instance, the Lawns at Moti Mahal were let out for holding of various functions. Earlier the daily collection ran into lakhs of rupees but the Lawns were now leased out on a long-term basis for a paltry sum of Rs.40 lakhs per year and that too payable in installments. The lessees have been earning huge profits by sub letting the premises.
66. In the meantime, a joint request was made by the members of Interim Committee on 11.10.2017 to the Court that they may be relieved from the responsibilities of running the day-to-day affairs of the Society and the Institutions run by it, as over five years had passed from the date of Interim order passed on 13.02.2012 and 26.04.2012, and because of advancing age and failing health, the members of the Interim Committee found that they could not efficiently perform the duties assigned by the High Court.
Another letter was sent on 03.07.2018 by Justice Khem Karan and Shri Ram Arun praying to be relieved of the responsibilities assigned by the Interim orders of the Court.
67. Application No.96998 of 1018 was filed on 06.09.2018 on behalf of the petitioners for deleting the name of Opposite Party No.4 and Opposite Party No.6, as they were both dead and Application No.101811 of 2018 was filed on 17.09.2018 for impleadmeant of Professor Lal Amrendra as he was reinstated as Foundation member by the order of the Deputy Registrar dated 30.11.2012. The Deponent prayed for permission that the Petitioner No.1 Society be represented through its Honorary Secretary Professor Lal Amrendra in place of Joint Secretary Mrs. Usha Chaudhary. This application too remain pending and has now become infructuous.
It is interesting to note that Writ Petition No.918 (M/S) of 2013 was filed by the Society through its President Vimal Kumar Sharma whereas under the Byelaws as alleged by private respondents in Writ Petition No.367 of 2012 and Writ Petition No.4528 of 2010 litigation on behalf of the Society could be undertaken by the General Secretary or a person authorized in this behalf by the Governing Council.
68. After application for Restoration was allowed by this Court on 26.04.2013, the Deputy Registrar recalled his order dated 11.01.2013 declaring Vimal Kumar Sharma, Vishnu Bhagwaan Agarwal and Narsingh Narain Tiwari as elected office bearers. In pursuance of repeated requests of Justice Khem Karan and Shri Ram Arun to be relieved of their responsibilities, this Court passed an order on 19.09.2018 replacing the members of the Interim Committee by Justice S.U. Khan (retired) and Sri Viresh Kumar (retired IAS) 1983 batch U.P. Cadre Officer. This Interim Committee took charge on 29.09.2018.
69. An Application No.127211 of 2019 has been filed on 01.11.2019 after arguments were heard and judgement was reserved, stating that the aforesaid writ petitions stood abated and the interim order dated 13.02.2012 stood discharged. The affidavit has been sworn by Vimal Kumar Sharma again repeating the preliminary objections regarding maintainability of the writ petition. The argument raised by the learned counsel for the private respondent is that after death of Nagendra Nath Singh on 25.08.2012, the writ petition abated as Nagendra Nath Singh was seeking continuance as President of the Society, even though its tenure had to come to an end on 31.12.2011. A complaint has also been made in Paragraph-4 of the affidavit in support of this Application that the Interim Committee constituted to look after the affairs of the Society and the Institutions run by it has not been able to safeguard the interest of the Society whose functions are humongous and that two retired individuals who got together two to three times a week for just an hour could not supervise the functioning of such a Society and its institutions effectively. In Paragraph-5 of the affidavit, it has been mentioned that elections were held on 09.02.2012, but on account of Interim Order they were not given effect to, as a result, their three years term/tenure has also expired, the management of the Society has been usurped permanently under Interim Order passed by this Court.
70. While arguing the matter, Sri Prashant Chandra has emphasised the preliminary objections raised by him through his various applications praying for dismissal of the writ petition.
71. The learned counsel for the private respondents has argued against the maintainability of Writ Petition No.4528 (M/S) of 2010. It has been submitted that Writ Petition No.4528 (M/S) of 2010 has been filed arraying the Committee of Management of the Society through its President Nagendra Nath Singh as petitioner no.1. The second petitioner is Nagendra Nath Singh as President of the Society and the third petitioner is Kunwar Reoti Raman Singh, who has only mentioned his address but has not mentioned in which capacity he has filed the petition, so it may be presumed that he has filed the writ petition in his personal capacity. It has been submitted that as per the Bye laws of the Society, the Secretary alone is competent to institute a petition on behalf of the Society. If the Secretary is unavailable, then the Governing Council may authorize a person to file the petition on its behalf. Since the Secretary has not filed the petition, nor there is any Resolution of the Governing Council authorizing any specific person to file the writ petition, the writ petition filed through the President of the Society is not maintainable. Moreover, petitioner no.2 Nagendra Nath Singh died on 25.08.2012 and he has not been substituted by any person, so the writ petition abated in so far as Nagendra Nath Singh is concerned. With regard to the petitioner no.3, it has been submitted that the Governing Council on 22.08.2010 had allegedly authorized only Nagendra Nath Singh to contest the proceedings before the Deputy Registrar. It had been decided by the Governing Council that it will not contest the proceedings before the Deputy Registrar where expulsion of three members was challenged. A copy of said Resolution has been filed by Nagendra Singh in his Supplementary affidavit. It was clear that Nagendra Nath Singh alone could personally if he so desired, contest the proceedings before the Deputy Registrar. In the meeting of the Governing Council where such Resolution was passed, the names of nine Foundation Members have been mentioned as signatories of such a Resolution. The petitioner no.3, who alleges that he was inducted on 05.12.2008 as a Foundation Member is not mentioned in such a Resolution.
72. It has been submitted that the Resolution dated 15.03.2008 had been challenged before the Deputy Registrar by three members who had been expelled. Such Resolution had not inducted any person as a member in place of the three persons who were expelled. Therefore, only those three persons who were expelled and the President Nagendra Nath Singh were entitled to be heard. The petitioner no.3- Kunwar Reoti Raman Singh could not have been heard. He could therefore not say that there was any denial of the principles of natural justice by the Deputy Registrar while passing the order impugned. It has further been submitted that Nagendra Nath Singh had filed a written submission before the Deputy Registrar in which he alleged that on expulsion of three members, two members were inducted. There is no mention of Kunwar Reoti Raman Singh. It has been further argued that Nagendra Nath Singh who was responsible for expulsion of three members was appearing before the Deputy Registrar in the proceedings held on the representation of Vishnu Bhagwaan Agarwal and he never stated anywhere that Kunwar Reoti Raman Singh was also inducted in the resultant vacancy. The Deputy Registrar was not supposed to issue notice to persons likely to be affected when the very existence of such member or his induction was not brought to the knowledge of the Deputy Registrar at any stage. It has further been argued that Kunwar Reoti Raman Singh having being ousted by the Deputy Registrar's order dated 26.07.2010 and Professor Lal Amrendra not being substituted in time, the writ petition abated automatically.
73. It has also been argued that the Writ Petition No.367 (M/S) of 2012 is not maintainable as it has been filed by Nagendra Nath Singh as President of the Society in his personal capacity, and that the order that was passed by him on 28.12.2011 allegedly promulgating an Agenda for holding of elections was without any authority in law as only the Secretary can circulate such an Agenda for elections. The order issued by Nagendra Nath Singh on 28.12.2011 being in his personal capacity, he alone was aggrieved with the setting aside of the said Agenda by the order of the Deputy Registrar dated 10.01.2012 and on his death nobody else can be substituted in his place as the petitioner, as no one else is aggrieved by such an order. The new Committee of Management whose election results were declared on 11.01.2013 by the Deputy Registrar has already resolved that there shall be no contest further in this writ petition.
74. It has further been submitted that even otherwise the Writ Petition No.367 (M/S) of 2012 being confined to holding or non-holding of elections was not maintainable in view of the law settled by the Supreme Court in N.P. Ponnuswami vs Returning Officer, Namakkal Constituency and others; AIR 1952 SC 64, that once an election is notified it should not be challenged in any form except by way of an election petition after such election is over. It has been submitted that when the Court passed the interim order on 9.02.2012 and 13.02.2012, the Interim Committee appointed by the Court took over but on dismissal of the writ petition in default such Interim Committee also lost its reason for existence. The election results were declared on 11.01.2013 and the new committee took over, therefore, the Writ Petition No. 367 (M/S) of 2012 itself become infructuous.
75. It has further been argued that on the dismissal of the writ petition for non-prosecution, Professor Lal Amarendra who had been re-inducted as Foundation Member on order of the Registrar dated 30.11.2012, could not have filed an application for recall of order as the Professor had not been substituted in place of Nagendra Nath Singh and his application for recall of order dated 07.01.2013 was not maintainable.
76. It has also been submitted that Kunwar Reoti Raman Singh has consciously filed an application for amendment and no application for Substitution. Under Order 22 Rule 1 and 2 of the C.P.C., the locus of persons who can apply for setting aside of abatement and for substitution is mentioned. Hence consciously no application for substitution and setting aside of abatement was moved and only an amendment application was moved referring to by Rule 24(2) of the Bye-laws of the Society to say that in the absence of the President, the Vice President shall perform the duties of the President. It has been argued that deponent of the affidavit resorted to misrepresentation to make out as if the President was on leave or was absent for some other reason. He did not disclose that the President had died on 25.08.2012. Moreover, he also did not disclose that he was not the acting Vice President as his induction as a result of vacancies created on the Resolution of the Governing Council dated 15.03.2008 expelling three members, was no longer valid. The Resolution dated 15.03.2008 being set aside by the Deputy Registrar on 26.07.2010, Kunwar Reoti Raman Singh stood automatically expelled. Reference has been made to 2012 (11) SCC 531 and paragraphs 42, 44 and 47 to say that since Kunwar Reoti Raman Singh had resorted to suppression of material facts, his application be rejected. It has further been argued that the application was made six years after the original petition was filed. In the affidavit filed in support of the application, it was made out that the applicant was the Foundation Member and, therefore, entitled to pursue the writ petition. A Foundation Member is not equivalent to a Founder Member as the Foundation Member can be inducted by the President. It was Nagendra Nath Singh who had inducted Kunwar Reoti Raman Singh.
77. Also, in the order dated 10.01.2012 passed by the Registrar, another order passed by the Nagendra Nath Singh dated 04.01.2012 removing the Manager of Chandra Bhan Shiksha Manav Vikas Kendra, Lucknow had been set aside. Setting aside of an order passed by Nagendra Nath Singh in his personal capacity would not give rise to any cause of action to the society to pursue the writ petition. In Writ Petition No. 367 (M/S) 2012, the Society has been arrayed as petitioner no.1 through Joint Secretary Mrs Usha Chaudhary. The post of Joint Secretary is not a necessarily duly created post and its incumbent Mrs Usha Chaudhary was never authorized to file the writ petition on behalf of the Society by the Governing Council. Reference has been made to the judgement rendered in Umesh Chandra and another Vs. Mahila Vidyalay Society and others; 2006 (24) LCD 1373 to buttress the argument.
78. Dr. L. P. Mishra in response to arguments of the counsel for the Private Respondent regarding maintainability of the Writ Petition No. 4528 (M/S) of 2010 has submitted that Kunwar Reoti Raman Singh was inducted as a Foundation member on 05.12.2008 along with Shri Ram Arun and Raja Anand Singh, in the vacancy arising consequent to expulsion of Vishnu Bhagwaan Agarwal, Narsingh Narain Tiwari, and Vimal Kumar Sharma. If the expulsion of these three Foundation members was going to be set aside by the Deputy Registrar then it was incumbent upon the Registrar to have issued notice to him and heard him. His membership being invalidated, he had a cause of action independently to approach this Court in Writ Petition No.4528 (M/S) of 2010. The learned counsel for the petitioner has referred to Kunwar Reoti Raman Singh being inducted as a Foundation member on 05.12.2008 and is being elected as Vice President in the Election held on 31.12.2008. It has also been submitted that the election of Kunwar Reoti Raman Singh has not been challenged by the respondents.
79. It has been submitted further that under section 7 of the Societies Registration Act, a Society can sue or be sued as an independent juristic person capable of perpetual succession. The Society is akin to a Corporation and can continue with the litigation initiated on its behalf by any of its members, even if in a minority to protect the interest of the Society, if the cause of action survives. The learned counsel for the petitioner has also referred to section 6 of the Societies Registration Act and to the judgement rendered by the Bombay High Court reported in 1946 Bombay Law Reports 341 in Satyavart Sidhantalankar Vs. The Arya Samaj. It has been submitted that the judgement rendered by the Bombay High Court has been followed by the Allahabad High Court in a judgement reported in Shanti Sarup vs Radhaswami Satsang Sabha, AIR 1969 Allahabad 248, and by the Patna High Court in a judgement in Khiri Ram Gupta and Another Vs. Nanalal J. Parekh, reported in AIR 1964 Patna 114.
80. It has been submitted that under Order 22 Rule 4 A of C.P.C., this Court can also nominate anyone to pursue the cause of the Society. It has been pointed out that Professor Lal Amarendra had also filed an application for impleadment on having been restored to the position of General Secretary by the Deputy Registrar by order dated 30.11.2012. This Impleadment Application remained pending. The order passed by the Deputy Registrar on 30.11.2012 restoring Professor Lal Amarendra as Secretary has not been challenged. The order dated 30.11.2012 has attained finality.
81. Dr. Mishra, has also referred to an amendment application moved by Kunwar Reoti Raman Singh which is pending disposal before this Court in which Kunwar Reoti Raman Singh has requested for deletion of the names of Nagendra Nath Singh from the array of the petitioners and the inclusion of the name of Kunwar Reoti Raman Singh being Vice President and entitled to continue the litigation on behalf of the Society.
82. It has been submitted further that in the absence of the President and the Secretary, the Vice President could continue the litigation on behalf of the Society, in view of Rules 23, 24, and 25 of the bye-laws of the Society. It has also been submitted that no election has taken place after 31.12.2008. The Election which was held in February 2012, on the orders of the Registrar, the result of which was declared in January 2013 has been initially stayed by the Deputy Registrar himself subject to further orders in the writ petition. Reference has been made to the order dated 30.04.2013 passed by the Deputy Registrar by which he has recalled the results of the elections declared by him on 11.01.2013 after restoration of the writ petition on 26.04.2013.
83. It has been submitted by Dr. Mishra, that Nagendra Nath Singh was not defending his personal property or personal Estate. The Writ Petition was filed to protect the interest of the Society. If he was dead, the Court as guardian of the Society cannot allow the interest of the Society to suffer, even in cases of individual Estate this Court has Power Under Order 22 Rule 4A of the C.P.C., in the absence of legal representative, to allow somebody to pursue the litigation. On 09.02.2012, itself this Court passed an interim order in Writ Petition No.367 of 2012 that till further orders of the Court, the orders dated 10.01.2012 and 16.01.2012 shall remain in abeyance and any action taken in pursuance of orders dated 10.01.2012 and 16.01.2012 shall remain stayed. The order was communicated on the same day to the Deputy Registrar by the office of the CSC in pursuance of which declaration of results for the Committee of Management was put in abeyance. On 13.02.2012, this Court appointed the Interim Committee. On the Restoration Application being filed, the Deputy Registrar put on hold the operation of accounts by the newly elected Committee of Management by his order dated 16.01.2013. It has been argued by Dr. L. P. Misra, that the result of the Elections declared on 11.01.2013 was made subject to further orders of the Court in writ petition, therefore, there was no necessity to assail them besides Deputy Registrar has passed an order on 30.04.2013 cancelling the result declared and recalling his order dated 11.01.2013. Dr. Mishra has referred to Section 6 of the Societies Registration Act which refers to the Phrase "as shall be determined by Rules and Regulation". Similarly, it also refers to the phrase "as determined by the Governing Body", it has been submitted that it is only a procedure for convenience and not of mandatory character. The Society by itself is a legal entity and has an independent and perpetual existence separate from its office bearers. Its interest can be considered as paramount interest to be protected by the Court which is the Guardian as "Parens Patriae". The learned counsel for the petitioner has referred to Rule 4 and Rule 4A of Order 22 of the C.P.C. to submit that these Rules deal with situation where the cause of action survives but there is no heir or legal representative to pursue the case, it has been submitted that the Court can even appoint a representative on its own in such matters.
84. It has also been submitted that the notice issued by the Deputy Registrar in 13.05.2009 was to the President of the Society as in the eyes of the Deputy Registrar Nagendra Nath Singh was competent to represent the Society at the time of filling the writ petition. There was no General Secretary as the General Secretary Professor Lal Amrendra had already been removed. Notice was issued to the President and not to the General Secretary. The President was considered competent to represent the Society to defend the decisions of the Governing Council expelling three Foundation members. The reply submitted by Nagendra Nath Singh on 29.05.2009 to the Show Cause Notice issued by the Deputy Registrar was on behalf of the Society. The lis before the Deputy Registrar was between the Society and the Opposite Party Nos. 4 to 6. It was the internal affairs of the Society which were brought into question by Opposite Party Nos.4 to 6 by moving a representation to the Deputy Registrar. Reference has been made to Rule 24 of the Byelaws which appoint the President as the Chief Executive Officer of the Society entitled to take decision on its behalf and only ratification of the General Council is required of action taken by the President. It has been submitted that in the case this Court accepts the argument made by counsel for the Private Respondent regarding resolution dated 22.07.2010, it would mean that the Society was never put to notice and would vitiate the whole proceedings before the Deputy Registrar. It has been submitted that in the case of Mahila Vidyalaya (supra), an individual member had approached the Court against the decision taken by the Deputy Registrar against the Society. On the other hand in Writ Petition No.4528 (M/S) of 2010 and Writ Petition No.367 (M/S) of 2012, it is not just any individual member but the President or the Chief Executive Officer challenging the order passed by the Deputy Registrar without any jurisdiction interfering in the internal affairs of the Society. It has also been submitted that Rule 24 and 25 of the Byelaws should be read together which Section 6 of the Societies Registration Act. Section 6 of the Act is an enabling provision which allows the continuation of a suit or legal proceeding. Dr. L. P. Mishra has also referred to Paragraphs 50 & 51 of Mahila Vidyalay (supra) judgement.
85. It has been further submitted by Dr. L.P. Mishra that the outgoing Committee of Management of which, Sri Nagendra Nath Singh was the President, Professor Lal Amrendra was the Secretary, Kunwar Reoti Raman Singh was the Vice President and Mrs. Usha Chaudhary was the Joint Secretary, should be deemed to be in existence as no valid Committee of Management had come to take its place thereafter. The elections were indeed held by the Deputy Registrar and result was declared after Writ Petition No.367 (MS) of 2012 was dismissed for want of prosecution by this Court, but such elections were not recognized by this Court when it passed an order for restoration of writ petition on 26.4.2013. This Court had earlier appointed an Interim Committee by an order dated 13.2.2012 and had observed that the Interim Committee appointed by the order dated 13.2.2012 shall continue to function. It has been submitted that the Deputy Registrar after passing of the courts order dated 26.4.2013 had himself withdrawn his earlier order dated 11.1.2013. The interim Committee continues to function but it does not represent the Society. The Society can only be represented by the Committee of Management duly elected on 31.12.2008 as no successors have been elected to take over the management of the Society.
86. It has also been submitted by Dr.L.P. Mishra that under Rule 24(2) of the Bye-laws, in the absence of the President, the Vice President can perform all functions of the office of the President. In this case, Sri Nagendra Nath Singh may have died during the pendency of the writ petition, but Kunwar Reoti Raman Singh, who is the Vice President, continues to be so and in the absence of President, for any reason whatsoever, he can also act as the Chief Executive Officer of the Society in terms of Rule 24.
87. Learned counsel for the petitioner has submitted that the order passed by the Deputy Registrar on 26.7.2010 could not have been passed as it related to removal of three members on disciplinary ground, which is an internal matter of the Society. These three members were removed on 15.3.2008. Sri Vishnu Bhagwaan Agarwal filed a representation against his removal before the Deputy Registrar. The Deputy Registrar could not have seen the validity of the removal before the amendment in the Societies Registration Act, and introduction of Section 4B of the Act in October, 2013. Yet the Deputy Registrar issued a notice to the President of the Society Nagendra Nath Singh, a copy of the notice has been filed at Pages 91 and 92 of the petition.
88. It has been submitted that the Deputy Registrar recognized the President Nagendra Nath Singh as representing the Governing Council and the Society's interest. Had it not been so, notice would not have been issued to Sri Nagendra Nath Singh as President of the Society. Even if the Governing Council adopted a resolution on 22.7.2010 that the Society is not interested in contesting such case before the Deputy Registrar and Nagendra Nath Singh may do whatever he deems proper, Nagendra Nath Singh was in fact defending the resolution passed on 15.3.2008 by the Governing Council before the Deputy Registrar in the said proceedings.
89. Learned counsel for the petitioner has referred to Annexure-13 to the writ petition, which is the reply submitted by Sri Nagendra Nath Singh on behalf of the Society to the Deputy Registrar on 29.5.2009. It has been submitted that the lis that was being decided by the Deputy Registrar was between the Society and Sri Vishnu Bhagwaan Agarwal, Narsingh Narain Tewari and Vimal Kumar Sharma. Yet when Vishnu Bhagwaan Agarwal approached this Court by filing Writ Petition No.2353 (MS) of 2010, praying for a direction to the Deputy Registrar to decide his representation against his expulsion, the Society was not impleaded as a party in the said writ petition. The writ petition was disposed of on 28.5.2010 without notice to the Society by an innocuous order, asking the Deputy Registrar to decide the representation in case the same was pending before him in accordance with law. However, the Deputy Registrar while deciding the representation, had in fact issued notice to the Society through its President and the reply was submitted by the Society through its President.
90. It has also been submitted that any individual member can approach a Court of law to protect the interest of the Society and when the High Court finds that injustice would result that would affect the interest of the Society, then the High Court can entertain a petition filed even by a single member or by minority of members against an order passed by the Executive Authority, which would result in prejudice to the Society. It has been submitted that this Court should also take into account that in earlier rounds of litigation, the High Court had come to a definite conclusion that Vishnu Bhagwaan Agarwal and other members expelled from the Society have resorted to fraud and misrepresentation and this Court should, therefore, entertain the petition to protect the interest of the Society and should reject the preliminary objection that were raised in earlier litigation by the private respondents. Since the Society was aggrieved, the Society could have been represented by the President or the Joint Secretary in the absence of the General Secretary.
91. Referring to the insistence of the counsel for the private respondents that this Court must decide the preliminary objections regarding maintainability first, Dr. L.P. Misra has referred to 1976 Amendment to the Civil Procedure Code, which made it discretionary for the Court concerned to pass an order deciding a preliminary issue first before entering into the merits of the controversy. It has been submitted on the basis of a Full Bench decision of this Court in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad; reported in 1990 LCD 417, that the word "shall" has been replaced by the word "may" and it has been left open to the discretion of the Court to consider the preliminary objection along with the merits of the controversy. This Court had observed that only in such cases where the jurisdiction of the Court itself is being challenged either territorial or pecuniary, or where there is a bar against entertainment of suit in any other law for the time being in force, that the Court is enjoined to first consider the preliminary objection and then enter into the merits of the controversy. In the aforesaid decision, the Full Bench observed that if the maintainability of the suit is so interlinked with the merits of the controversy that they cannot be decided separately, they can both be considered and orders can be passed.
92. A Counter Affidavit has been filed by the Deputy Registrar, Firms, Societies and Chits to the Writ Petition No.367 (M/S) of 2012 in which he had stated that by an order dated 22.12.2011 passed by him election had been fixed. Ten valid members of the Governing Council would meet first and complete the membership for the Administrative Council and then hold elections for the Committee of Management, the membership of the Administrative Council had been determined on the basis of order dated 28.05.2010 passed in Writ Petition No.3353 (M/S) of 2010, Vishnu Bhagwaan Agarwal Versus Deputy Registrar.
Professor Lal Amrendra had also filed Writ Petition No.2877 (M/S) of 2010 which was pending since the term of the Administrative Council of the Society expired on 30.12.2011, the said Committee had become time barred and therefore, order was passed under Section 25 (2) for Reconstitution of the Administrative Council. After such order was passed, under Section 25 (3) of the Act, nobody could start any process for election of office bearers. There was a valid list of ten members of the Administrative Council of the Society determined as per the Order No.1903, dated 22.12.2011. The Deputy Registrar in his counter affidavit stated that he had passed the order dated 10.01.2012 to protect the interest of the Society and cancelled the election schedule announced by the then President Nagendra Nath on 28.12.2011. The Elections that were proposed by time barred Committee were not found in the interest of the Society and therefore, the election proposed by election programme dated 28.12.2011 was legally and rightly cancelled.
93. In Writ Petition No. 430 (M/S) of 2012, an Application No.101811 of 2018 has been filed for impleadment by Professor Lal Amrendra which has not been pressed by any counsel and is rejected for non-prosecution.
An application for dismissal of Writ Petition No.430 (M/S) of 2012; i.e. Application No. 81522 of 2012 has been filed by Professor Lal Amrendra which has not been pressed by any counsel and is rejected for non prosecution.
An application No.97002 of 2018 has been filed on 04.09.2018 by the writ petitioner for deleting the name of respondents nos. 4 and 6 by the counsel for the petitioners which is allowed as respondent nos. 4 and 6 are no more.
94. An application has been filed on 6.2.2020 by Professor Ashok Sharma, Brij Bhushan Jindal, Som Prakash Gupta, Vijender Kumar Agarwal, and Raj Kishore Rastogi, praying for dismissal of the writ petitions as having abated on the death of Nagendra Nath Singh on 25.8.2012. In the said application, it has been stated that the last election of the Society was held on 9.2.2012. The results were declared on 11.1.2013 wherein Vimal Kumar Sharma was elected as President, Vishnu Bhagwaan Agarwal was elected as General Secretary and Narsingh Narain Tewari was elected as Vice President. A meeting of the Governing Council was held thereafter on 20.2.2013 where Professor Ashok Sharma was inducted as a Foundation Member of the Society. The minutes of the meeting were verified by the then General Secretary Vishnu Bhagwaan Agarwal. It has been submitted that the applicant nos.2 to 4 are the Patron Members of the Society and applicant no.5-Raj Kishore Rastogi is a Founder Member of the Society. Besides the applicants, there are three other Foundation Members of the Society i.e. Dr. Dauji Gupta, Mata Prasad and J.R. Tripathi, who are alive. Since eight members are alive, the writ petition be dismissed and the Management of the Society be handed over to these members. It has been stated in this application that the elected members were restrained from functioning as such by an interim order of this Court dated 26.4.2013. This Court appointed an Interim Committee of two members, which has been functioning ever since. After death of Nagendra Nath Singh, the writ petition stood automatically dismissed as having abated w.e.f. 25.8.2012 and the affairs of the Society now stood vested in the Committee constituted in the election of 2012-13, which had already taken a decision that the aforesaid writ petition be not pursued on behalf of the Society.
95. Sri Madan Mohan Pandey, learned Additional Advocate General of State of U.P., had been requested by this court to appear on behalf of the State-respondents and also as a friend of the court to address the Court on the question of abatement of writ petition on the death of Nagendra Nath Singh, Vishnu Bhagwaan Agarwal, Vimal Kumar Sharma and Narsingh Narain Tiwari during the pendency of the writ petition.
96. Sri Madan Mohan Pandey assisted by Sri Shashank Bhasin, learned Standing Counsel, has placed before this Court Section-7 of the Societies Registration Act which clearly provides that no suit or proceedings shall abate in case the designated person/officer of the Society dies or ceases to hold office. It has been submitted that even otherwise Order 22 of CPC is not applicable in view of Section 141 of CPC and its Explanation added by way of amendment in 1977. It has been submitted that there cannot be any automatic abatement of writ petition. No application under Order 22 is maintainable as the order is not applicable in writ jurisdiction as has been held by the Supreme Court in Puran Singh Vs. State of Punjab; 1996 (2) SCC 205 and paragraphs 4,5,7,10 and 11 of the report have been read out by him to buttress his submissions. It has also been submitted on the basis of the judgment rendered by the Supreme Court in 1974(2) SCC 706 and Para 10 thereof that in so far as abatement is concerned in writ jurisdiction since Order 22 of C.P.C. is not applicable as it is extraordinary jurisdiction, this Court should consider the facts and circumstances and is free to pass an order looking into the grievance raised by the litigant. It has been submitted that even if the contesting respondents 4,5 and 6 are dead now, the question of validity of the orders passed by the Deputy Registrar on 26.7.2010 and 10.1.2012 are in issue in these writ petitions and these orders have been passed by the State respondents and the legality thereof can be considered by this Court.
97. Having heard the learned Additional Advocate General, this Court shall first consider the argument raised by learned counsel for the private respondents that these writ petitions have abated. The Legislature while amending Section 141 of the Code and while adding the explanation was conscious of the fact that various High Courts and the Supreme Court conferred with powers under extraordinary jurisdiction cannot be subject to the fetters of the technical procedure for the purpose of achieving remedial measures for enforcing the rights of the citizen. It is for this reason, the Explanation has been added to Section 141 of the Code. In the Statement of Objects and Reasons while introducing the Bill which ultimately was passed on 1.2.1977, it has been mentioned in Clause-5 thus:
"The applicability of Section 141 to various types of proceedings has been the subject of controversy, particularly whether the Section applies where an application to set aside ex-parte proceedings or orders of dismissal for default or cases decided ex-parte. The High Court of Bombay held that in such cases, Section 141 applies. The Supreme Court, however, came to a contrary conclusion. In the circumstances, Section 141 is being amended to clarify that this Section applies to proceedings under Order 9. The question whether an application under Article 226 of the Constitution is within the meaning of civil proceedings and Section 141 shall apply to such proceedings, has been the subject matter of a controversy. While the Andhra High Court holds that Section 141 applies to such proceedings. The Allahabad, Calcutta, Madras and Punjab High Courts have held that Section 141 does not apply to such proceedings. In the circumstances, it is being clarified that Section 141 does not apply to proceedings under Article 226 of the Constitution of India......"
98. The effect of explanation being added to Section 141 CPC has been considered specifically by the Supreme Court in Puran Singh (supra). The Supreme Court observed in relation to proceedings of Consolidation of Holdings Act arising out of an order passed in favour of the respondents by the Additional Director of Consolidation in Revision that delay in bringing on record the legal heirs and representatives of the respondents, would not lead to dismissal of the writ petition as abated. The Supreme Court in the case of Puran Singh (supra), observed in paragraph 10, 11 and 12 as under:
"10. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression ''proceedings' shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression ''proceedings' occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings? Apart from that, Section 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis insofar as they are not inconsistent with those rules. In the case of Rokyayabi v. Ismail Khan [AIR 1984 Kant 234 : (1984) 2 Kant LC 114] in view of Rule 39 of the writ proceedings rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals.
11. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to writ proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious.
12. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well-known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. ....."
99. In Puran Singh (supra), the Supreme Court has reiterated the same principles after the referring to the Explanation added by the Parliament to Section 141 of the CPC. It was held that the High Court is not bound by the provisions of Order 22 Rule 4 of CPC and if the High Court comes to the conclusion that the delay on the part of the petitioner in substituting the legal representatives of the respondents is unintentional and sufficient cause for the delay is shown, it can allow the substitution of the legal representatives even after the period of 90 days prescribed under Article 120 of the Limitation Act has expired.
100. In Babubhai Muljibhai Patel versus Nandlal Khodidas Barot and others (1974) 2 SCC 706, the Supreme Court has observed that the object of Article 226 of the Constitution of India is to provide a quick and inexpensive remedy to the aggrieved party and that the power has been vested in the High Court to issue to any person or authority, orders or writs including Writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Waranto and Certiorari. If the procedure of a suit has to be adhered to in the case of a writ petition, the entire purpose of having a quick and inexpensive remedy would be defeated. It has been observed that the proceedings under Article 226 of the Constitution of India are essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into such proceedings. The relevant extract from the aforesaid judgment is reproduced as under:-
"10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226."
It is apparent from the reading of the judgment rendered by the Supreme Court in Babubhai Muljibhai Patel (supra), which was rendered before the amendment to the Code was carried out by the Legislature by adding an Explanation, that writ jurisdiction being an extra ordinary jurisdiction conferred upon the High Court by the Constitution, the power to regulate its own procedure to deliver justice in an inexpensive and expeditious way avoiding the delays in regular civil proceedings.
101. Their Lordships have also observed in State of U.P. and others versus Dr. Vijay Anand Maharaj, AIR 1963 SC 946, that the jurisdiction of the High Court under Article 226 of the Constitution of India should not be confused with the ordinary civil jurisdiction of the High Court. When the Constitution has vested extraordinary power in the High Court under Article 226/227 to issue any order, writ or direction, and the power of the superintendence over all Courts and Tribunals throughout the territories, in relation to which such Court is exercising jurisdiction, the procedure for enforcement of the mandate in exercising such power and jurisdiction has to be found in Article 226/227 of the Constitution itself and that no useful purpose would be served by limiting the powers of the High Court by procedural provisions prescribed in the Code. However, the provisions of procedure prescribed under the Code can be taken up as a guide while granting relief to the persons. It has also been observed that many procedures prescribed in the Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person, as such, the High Court should be left to adopt its own procedure for granting relief to the persons concerned.
102. In Commissioner of Endowments and others versus Vittal Rao and others, (2005) 4 SCC 120, the Supreme Court again held that even though Rule 24 of the Andhra Pradesh Writ Proceedings Rules, 1977 says that the provisions of the CPC have been made applicable to the civil proceedings as far as possible, but proceedings under Article 226 are not included within the expression "proceedings" in Explanation to Section 141 of CPC and observed that even if the Writ Court had not followed the procedure prescribed under Order 23 Rule 3 of CPC and believed the submissions of the counsel for the parties that they had come to a compromise and did not feel it appropriate to cross-examine the deponents of the affidavits concerned, the High Court cannot be faulted with in not following Order 23 Rule 3 of CPC. It observed that ''It would not be correct to say that the terms of Order 23 Rule 3 should be mandatorily complied with while exercising jurisdiction under Article 226 of the Constitution. Otherwise an anomalous situation would arise such as before disposing of the writ petition, issue should be framed or evidence should be recorded, etc. Proceedings under Article 226 of the Constitution stand on a different footing when compared to the proceedings in suits or appeals arising therefrom.'
103. Also, in Sardar Amarjit Singh Kalra (dead) by Lrs. and others versus Pramod Gupta (Smt.) (dead) by Lrs. and others, (2003) 3 SCC 272, a Constitution Bench of the Supreme Court has observed that even in cases where Order 22 of the CPC is applicable, even assuming that the decree appealed against or challenged is joint and inseverable, as and when it is found necessary to interfere with the judgment and decree challenged before it, the Court can always declare the legal position in general and restrict the ultimate relief to be granted by confining it to those before the Court only rather than denying the relief to one and all on account of a procedural lapse or action or inaction of one or the other of the parties before it. As far as possible, the Court must always aim to preserve and protect the rights of the parties and extend help to enforce them rather than denying the relief, and thereby render the rights themselves otiose, "ubi Jus Ibi remedium" (where there is a right, there is a remedy) being the basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair reasonable and proper administration of justice. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on the merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as a handmaiden of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.
104. A full reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto, would lend credit and support to the view that they were devised to ensure the continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non suit the others similarly placed, as long as their distinct and independent rights to property or any claim remain intact and are not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 of CPC are not to be construed as a rigid matter of principle, but must be viewed as a flexible tool of convenience in the administration of justice. The Supreme Court observed that the interest of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the application to set aside abatement, condonation and bringing on record the legal representatives did not appear to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as a handmaiden and make it workable and advance the ends of justice, technical objections which tend to be the stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it.
105. Mr. Prashant Chandra has placed reliance upon AIR 2008 SC 2866, Jaladi Suguna (deceased) through LRs. versus Satya Sai Central Trust and others and (2010) 8 SCC 685, Balwant Singh (dead) versus Jagdish Singh and others, to substantiate his arguments regarding automatic abatement of the writ petition on failure to substitute legal heirs and representatives by filing appropriate application for substitution under Order 22 of CPC.
106. However, this Court finds that in writ jurisdiction, which is an extraordinary jurisdiction exercised by this Court, the judgments cited by the learned counsel for the respondents are inapplicable.
107. The question of abatement of writ petition having been dealt with, I will now consider the preliminary objections raised along with the merits of the case set up by the parties. In the Full Bench decision of the Court rendered in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad, reported in 1990 (8) LCD 417, paragraphs- 8, 9, 10, 29, 30 and 31 make useful reading. The appellant therein had argued on the basis of Order XIV Rule 2 of the C.P.C. as it stood before its amendment in the year 1976. It was provided therein that where issues of both law and facts arise and the "court is of the opinion" that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose "if it thinks fit," postpone the settlement of issues of fact until after the issues of law have been determined. It was argued that the Court had no discretion in the matter as the words used in the Section were "it shall try those issues first". Later on the Order XIV Rule 2 was amended which reads as follows:-
"(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue"
108. This court observed that the word "shall" used in the old Order XIV Rule 2 has been replaced in the present Rule by the words "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue. Another change has been brought about by the amended provisions to the effect that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fall within the ambit of Clause (a) and (b) of Sub-Rule 2 of Order XIV.
109. The Court after considering the issues framed by the learned trial court came to the conclusion that none of the issues could be brought within the bar created by the Limitation Act or the Muslim Waqfs Act. The Court observed in paragraphs 30 and 31 as follows:-
"30. We have observed hereinabove that after the amendment brought about in the year 1976 it is discretionary with the Court to take up an issue as a preliminary issue. The court is not bound to take up any issue as a preliminary issue. All judicial discretions have to be exercised reasonably........From this it would appear that dispute between the parties is pending for the last 10 years. The dispute raised in these suits is of vital importance to the country. It is not a suit between two individuals. It is a dispute between two major communities of the country. Off and on, leaders of these communities adopt hostile postures. The entire nation is waiting for resolution of the dispute by this Court. Delay in resolution of the dispute threatens to disturb peace in one or the other part of the country. It is, therefore, desirable that all the suits should be decided as early as possible. Our decisions on the so called preliminary issues will not be final. Appeal may be preferred against our decision and further hearing in the suits may be stayed. This will cause delay in the final solution of the dispute. Accordingly we are of the opinion that issues 3 and 5 (f) should not be decided as preliminary issues even if they fall within the ambit of clauses (a) and (b) of Rule 2 of Order 14 of the Code of Civil Procedure.
31. In Major S.S. Khanna vs. Brig. F.J. Dillon AIR 1964 Supreme Court 497 their Lordships have observed that normally all issues in a suit should be tried by the Court as not to do so especially when the decision on issues even of law depends upon the decision of issue of fact, would result in a lop-sided trial of the suit. This observation of their Lordships now finds statutory recognition in sub-rule (1) of Order 14 Rule 2 of the Code of Civil Procedure reproduced hereinabove. According to this sub-rule normal rule is to decide all the issues together. Sub-rule (2) carves out exception to this normal rule. For the reasons already stated hereinbefore the present case does not fall in the exception carved out by sub-rule (2) of Order 14 Rule 2."
110. In the judgement of the Full Bench in the case of Gopal Singh Visharad (supra), the Court interpreted Order XIV Rule 2 as it now exists on the statute book after its amendment in 1976 and held that it is not mandatory for the Court to decide the preliminary issues first before deciding issues of fact as there are some issues of fact and issues of law which are so intertwined that they cannot be decided separately. It is the discretion of the Court to decide them together.
111. In Satyavrata Siddhantalankar Vs. The Arya Samaj (supra), the plaintiffs had filed a suit being members of the Arya Samaj Bombay, on behalf of themselves and all the members of the Society against the first defendant who was the President of the said society, as representing the Society of Arya Samaj Bombay and against defendant nos.2 to 4, who were the Members of the Managing Committee of the Society, for a declaration that the Resolutions passed at an extraordinary General Meeting of the Society were ultra vires and a fraud on the minority and null and void and for further other reliefs. The minority of members of the said Society was over borne by the vote of the majority who were acting against the interest of the Society and its objects. The question was raised regarding the maintainability of the suit as the plaintiffs had not obtained the sanction and consent of the Society for the institution of the said suit. The argument before the Court was that the ''Arya Samaj Bombay' is a Society registered under the Societies Registration Act and the plaintiffs are admittedly in a minority. The majority of the members of the Society were with the Committee of Management which was arrayed as a defendant. The plaintiffs had wrongly filed a suit in a representative capacity on behalf of themselves and all other members of the Society making out that a Society itself is in the position of the plaintiff. The President of the Society and other defendants also office bearers of the Society, had not sanctioned the filing of the suit. No meeting of the Society had been called for considering the advisability or otherwise of the institution of the suit.
112. It was argued that an Association of individuals which comes into existence and is registered as a Society is different from any other Association or Corporation whose members cannot sue in the name of the Secretary of such a club or association under the provisions of Order I Rule 8 C.P.C. It would not be competent for the Secretary or other members of the governing body of a club or association to sue or be sued alone in respect of matters in which the governing body or the club or association is interested, even though authority in that behalf has been conferred on them by all members of the Association. A partnership Firm is also an association of individuals who have come together for carrying on business in the name of the partnership. Even in case of a partnership it would not be competent to file a suit on behalf of or against the partnership as such, but for the provision of Order 30 of the C.P.C. Under Order 30 C.P.C., the Firm's name can be used for the purpose of filing a suit by or against the partnership. A society is however quite distinct from a partnership. It has nothing in common with a partnership. A Corporation or a Limited Company which is incorporated under the Indian Companies Act has a corporate existence apart from the members constituting the same. A Corporation has been defined as a collection of individuals united into one artificial form under a special denomination having been vested by the policy of law with the capacity of acting in several respects as an individual. The ideas inherent in the definition of a Corporation are; (1) That its identity is continuous, (2) That it is intangible, it is only an abstract in the intendment and consideration of law, (3) It is a thing distinct from its members. Section 23 of the Indian Companies Act enacts that from the date of incorporation the subscribers of the Memorandum of Association together with such other persons as may from time to time become members of that Company, which shall be a body corporate be capable of exercising all functions of an incorporated company and having perpetual succession and a common seal but with limited liability on the part of the members to contribute to the assets of the company in the event of it being wound up. The Corporations and Companies are conferred the right of being sued and are capable of suing as an independent legal entity. On the other hand, an Association of individuals or partnership Firms are not capable of suing or being sued except in accordance with the statutory provisions contained in the Code. On the registration of the Society under the Societies Registration Act, seven or more persons associated for any literary, scientific or charitable purpose or for any such purpose as described under Section 20 of the Act, as mentioned in the Memorandum of Association, can be registered as a Society. Under Section 6 of the Societies Registration Act, the Society must sue or be sued in the name of the President, Chairman, or the Secretary or Trustees, as will be determined by the rules and regulations of the Society and in default of such determination, in the name of such person as shall be appointed by the Governing Body for the occasion.
113. The Bombay High Court held that any person having a claim or demand against the Society may sue the President or the Chairman or the Secretary of the Society even in the absence of such determination. The Court gave a finding regarding the legal position of a Society registered under the Societies Registration Act. It was observed that the Society is an Association of individuals which is neither a Corporation nor a Partnership nor an individual, which are the only entities is known to law as capable of suing or being sued. Under section 7 of the Act, no Suit or proceeding is to abate or discontinue by reason of the person by or against whom such Suit or proceedings shall have been brought up or continued, dying or seizing to fill the character in the name of which he shall have sued or been sued, but the same Suit or proceeding shall be continued in the name of or against the successor of such person. The judgment delivered against the person or officer named on behalf of the Society, is not to be put in force against the property movable or immovable, of such person or officer but against the property of the Society. The Court observed that the members of the Society are a fluctuating body who may be admitted in accordance with the rules and regulations thereof after having paid the subscription and signing the roll of membership, but such members may either resign or be removed on incurring a disqualification or on misconduct. The members of the Governing Body as well are not always the same, therefore, the Legislature thought it fit to provide that no Suit or civil proceedings shall abate or discontinue by reason of the person by or against whom such Suit or proceeding may have been brought or continued, dying or seizing to fill the character in which he had been sued, but the same Suit or proceedings shall continue in the name of the successor of such person. Even though the members of the Society or the governing body fluctuate from time to time, the identity of the Society is sought to be made continuous by reason of Section 7 of the Act. A partnership under similar circumstances would come to an end but not the Society. The Society continues to exist and to function as such until the dissolution thereof under the provisions of the Act. The Society by reason of its registration under the Act becomes a legal entity apart from the members constituting the same. The Society once registered enjoys the status of a legal entity apart from the members constituting the same and is capable of suing or being sued. Although it was argued that under Section 6 of the Act that suits by or against the society have got to be filed in a particular manner, but it was held to be not mandatory. The Bombay High Court relied upon judgement rendered in the case of Taff Vale Railways vs. Amalgamated Society of Railway Servants; 1901 (1) QB170.
114. The speech made by Lord Lindley in Taff Vale Railway Corporation Versus Amalgamated Society of Railway Servants reported in 1901 AC 425 was quoted with approval. The Amalgamated Society of Railway Servants was a Trade Union which was registered under the Trade Union Act, 1871 and it could acquire property only in the name of its trustees but that property so held was the property of the Union and it was sufficient to treat the registered name of the Amalgamated Society of Railway Servants as one which may be used to denote the Union as an unincorporated Society in legal proceedings as well as for business and other purposes. Any claim against the Society could be enforced against the property of the Trade Union and to reach that property it may not be found necessary to sue the trustees.
The Bombay High Court relied on the observation of the Law Lords that the registered Trade Union is a species of quasi corporation. A registered Trade Union though not a Corporation, is a legal entity governed by Special Rules and reference was made to the Trade Union laws of England. Once it is registered it becomes a legal entity distinct from the unregistered Trade Union and its registered name is applied in legal proceedings.
115. In Shanti Sarup vs Radhaswami Satsang Sabha (supra), Division Bench of this Court was considering a First Appeal by the defendant appellant against Radha Swami Satsang Sabha, Dayal Bagh, Agra. One of the questions which was raised in the First Appeal was that the Suit could not have been filed by the plaintiff Society in its own name through its Secretary. It was alleged that Under Section 6 of the Act, The Societies Rules and Regulations should name one of its officers to enable the Society to sue or be sued in that name. The Suit being brought in the name of the Sabha through Secretary was bad in as much as it had been brought in the name of the Society itself and not in the name of the Secretary. The Division Bench of this Court relied upon an earlier Division Bench observation in AIR 1950 Allahabad 480, that a Society when it is registered under the Act, even if it is not a Corporation in the full sense of the term becomes a legal person and letters of administration could be granted to such Society. The right vested in the Society to sue or be sued and the provisions in Section 6 of the Act which begin with the words "may sue or be sued" in the name of one of its officers cannot take away the right of the Society itself to sue or be sued in its own name. Section 6 is merely an enabling provision that the suit be brought by the Society itself or in the name of the President, Chairman or the Principal Secretary or the trustees. The Division Bench at Allahabad came to the conclusion that Section 6 of the Act is merely permissive and the Suit could have been validly filed in the name of the plaintiff Sabha alone which was a registered Society.
116. In Nabadweep Bhajan Ashram Versus Commissioners of Navdeep Municipality (supra), the Calcutta High Court Division Bench was considering the question whether Navdeep Bhajan Ashram a Society registered under the Societies Registration Act as a religious and charitable institution could have instituted a suit against the commissioners of the Municipality praying for a declaration that certain holdings belonging to it situated in the Municipality were not liable to Municipal taxes on the ground that the holdings were exclusively used as places of worship to which the public have the right of free access. The Trial Court had dismissed the Suit as not maintainable as framed in the name of Navdeep Bhajan Ashram alone. The Division Bench observed that in the Memorandum of Association of the Society Rule 17 provided that the Association shall sue or be sued in the name of the Association or the Honorary Secretary for the time being. The Trial Court held that the Suit could not have been instituted in the name of the Ashram itself as per the provisions of Sections 6 and 7 of the Act a registered society could not sue or be sued in its own name but should sue or be sued in only in the manner indicated in the Sections in the name of either the Chairman or the President or the Principal Secretary or Trustees thereof, or some other person or Officer nominated by the Society. The Division Bench quoted with approval the observations of Justice Bhagwati in Satyavrata Siddhantalankar (supra) that these provisions are not mandatory, based upon the judgement rendered by the House of Lords in Taff Vale Railway Company Versus Amalgamated Society of Railway Servants. Section 6 of the Act does not take away the inherent right of the Society registered thereunder to sue or be sued in its own name. The Society does not lose the right as a result of such a section but it develops the character of a quasi Corporation. It may be true that under the Act, there is no express provision made that a Society registered thereunder can sue or be sued in its own name but that fact alone is not to be taken as sacred on that point. Under the Act, the power is given to the registered Society for acquiring and disposing of any property and therefore, it could sue in its own name alone as a plaintiff.
117. In Khiri Ram Gupta (supra), the Patna High Court was dealing with a Second Appeal filed by the respondent-appellant. A suit was filed by the plaintiff which was a Society registered under the Societies Registration Act with regard to a declaration of title over two plots of land used by the Society as a private land for the convenience of the Institutions set up near it by the Society. The Society had purchased the two plots of land through registered sale deed from the original tenants thereof. Later on, a Sub-tenant of the original tenants sold of the plot of land to the respondent-appellant. Both the Courts below had found that the Suit as framed was maintainable and the disputed land was the private land of the Society and the plaintiff had title to the land in dispute. When the matter went up in Second Appeal it was argued by the appellants that under Sections 6 and 7 of the Societies Registration Act, the suit filed in the name of the Society alone as plaintiff was not maintainable. Reference was made to the language of Section 6 of the Act which prescribes that either the President or the Chairman or Principal Secretary or the Trustees as determined by the Rules and Regulations of the Society and in default of such determination, such person shall be appointed by the Governing Body of the Society alone shall be competent for suing or being sued to advance a claim or demand for or against the Society. Since the Suit was instituted in the name of the Society alone as the sole plaintiff it was not maintainable. The learned Courts below had relied on the decision of Satyavrata Siddhantalankar Versus Arya Samaj reported in Bombay AIR 1945 Bombay 516 and Navdeep Bhajan Ashram Versus Commissioner Navdeep Municipality reported in AIR 1959 Calcutta 361, and came to the conclusion that the suit as framed was maintainable in law. It was also argued by the appellant that any registration made under the Act of 1860, does not make the Society a corporation. The respondents, however, argued that although the registration of a Society does not make it into a Corporation in the technical sense of the word, it does at least constitute a quasi corporation. It may sue or be sued in its own name even though there is no provision made in this respect.
118. In all the aforesaid cases, the various High Courts have relied upon English case laws. The observations made by Lord Brampton and Lord Lindley were quoted by the Courts where it was observed that the Union being an unincorporated Society could use the name given to it at the time of its registration. In Taff Vale Railway Corporation (supra), it appears that while the Appeals Court proceeded on the view that since there was no provision in the Trade Unions Act empowering a Trade Union to sue or be sued in its own name, therefore, it could not do so, the decision of the House of Lords was based on the absence of any provision in the said Act authorizing and directing that it shall sue or be sued in any other name than its registered name. Stress was laid on the fact that a Trade Union on registration came into existence as a separate legal entity created by the Statute which should be known by its registered name for all purposes. Section 9 of the English Trade Unions Act, 1871 contained provisions almost similar to those in Section 6 of the Societies Registration Act, and there were no provisions in the Societies Registration Act authorizing and directing a registered society to sue or be sued in any other name. It was held by the Division Benches of various High Courts that Sections 6 and 7 of the Societies Registration Act merely contained provisions for institution of suits by or against a registered society and are not mandatory and do not militate against a registered Society suing or being sued in its registered name in the absence of any express provision in the statute barring the Institution of suits by or against the Society in its registered name it could not be said that the suit as framed was not maintainable.
119. This Court is of the considered opinion that the opening phrase of Section 6 use the words "may" and therefore such Section is not mandatory but permissive. The language of the proviso to Section 6 uses the expression "it shall be competent" that is only an enabling expression and it does not prohibit the Society to come to the Court to protect its interests.
120. Learned counsel for the private respondents has relied upon Shri Sant Sadhguru Janardhana Swamy Moin Giri Maharaj. V State of Maharashtra reported in 2001 (8) SCC 509, and Paragraph 12 thereof to submit that the preparation of electoral roll being an intermediate stage in the process of election which having been set in motion, the High Court should not interfere in the election process.
121. Similarly in Shafi K. Joseph Versus V. Vishwanath & Others reported in 2016 (4) SCC 429, the the Hon'ble Supreme Court had observed in Paragraphs 15 and 16 on the basis of judgement rendered in N.P. Ponnuswami (supra), that once the election programme had been published and there was a statutory remedy available, the High Court should not have interfered with the process of election which had commenced. Several judgements relating to the same issue of maintainability of writ petition after election programme is published have been cited by the learned counsel for the private respondents but they are irrelevant for the controversy as when Writ Petition No.367 (M/S) of 2012 was entertained by this Court and an interim order was granted on 09.02.2012 which was reiterated in the order of this Court dated 26.04.2013, the respondent had approached the Division Bench in Appeal against the order of the Writ Court, the Division Bench had refused to interfere in the order and the Interim Committee constituted by the interim order of this Court continue to function and manage the affairs of the Society and the Institutions run by it till date. Deputy Registrar realizing his mistake had also initially declared the results of the elections on dismissal of the petition but on its restoration, had cancelled his order dated 11.01.2013, by an order dated 30.04.2013 which has been placed before this Court by the learned counsel for the petitioners. The order dated 30.04.2013 was never challenged by the respondents and has attained finality.
122. Although much arguments have been raised regarding the restoration of the Writ Petition No.367 (M/S) of 2012 and Writ Petition No.4528 of 2010 by this Court in April 2013, and restoration of the interim order by it and appointing of an Interim Committee again this Court cannot go behind the order dated 26.04.2013, as the order passed by this Court was challenged in Special Appeal and the Division Bench has refused to interfere but only observed that the writ Court may decide the writ petition expeditiously along with several applications pending in it, say within a period of three months. The writ petitions have remained pending for more than six years thereafter. Judgement was reserved twice by different Judges but the bunch was eventually released.
123. The Society runs seventeen Institutions like MMS Birla House and a Girls Hostel, National Inter College, National PG College, all at Rana Pratap Marg. Moti Lal Nehru Homeopathic Hospital, Bal Vidya Mandir, Bal Chikitsalaya, Bal Sangrahalaya, Bal Pustakalaya Ravindralay, Bal Ravindralay, MMS Auto Mobile Training Centre. A Nursing School and A Technical Training Centre etc. at Charbagh, Lucknow, and a Homeopathic Hospital and Technical Training Institute at Lakhimpur Kheri. It is obviously a Society which has contributed much to the educational and social well being of the people at large with its charitable work in the past. It has still more to contribute in the future and this Court cannot only on a preliminary objection being raised regarding the form in which the writ petition is drafted, ignore the valid and important questions of law raised regarding the jurisdiction of the Registrar/ Deputy Registrar in interfering with the functioning of the Society.
124. Now let us consider the case set up by the learned counsel for the parties on merits. For this, I shall have to consider the Bye-laws of the Society first. Under the Memorandum of Association of the Society, Para (3) provides for a Governing Council which will consist of 17 members and would include 13 Foundation members and four other members who shall be elected or nominated as prescribed under the Rules framed by the Society. The Council means the Governing Council of Moti Lal Memorial Society. The General Body means all members of the Society taken together consisting of Foundation members, Life members, Associate members, the Patrons and the Ordinary Members.
Rule (3) describes the Categories of Members Rule (4) the Foundation members, and says that only 13 Foundation members shall hold office for life unless any of them resigns or is removed under Rule 10 (1) or Rule 11 (1) of the Rules. All vacancies occurring in Foundation members shall be filled up induction in a meeting of Foundation members. Four members shall form a quorum and a person who is chosen by them to fill up the vacancy caused amongst Foundation members shall become a Foundation member for all purposes.
Rule 6 refers to Life members. A Life member means a person who was enrolled and registered as such by the Governing Council before 31.05.1964 or who shall thereafter, be admitted as such by the Council on the ground of his distinguished and devoted public service. Persons enrolled and registered as Life members of the Sansthan shall also become life members of the Society. The word "Sansthan" has not been defined in the bye-laws or the Memorandum of Association.
Rule 7 refers to Associate members meaning a person who was enrolled as such before 31.05.1964, or who thereafter, paid a donation of Rs.500/- in a lumpsum or gifted property worth that amount or more to the Society. A person registered as Associate member of the Sansthan shall also become an Associate member of the Society.
Rule 7A refers to Ordinary members as person who pays donation of Rs.25/- annually and is admitted as such by the Council and agreed in writing to promote the objects of the Society and to abide by its Rules and Bye-laws. Patron members are described in Rule 8 as persons who were enrolled and registered as Patrons before 31.05.1964 or persons who paid Rs.1000/- or more in lumpsum to the Society and agreed in writing to promote the objects of the Society and are admitted as such by the Council. A person enrolled and registered as patron of the Sansthan shall also become a patron of the Society.
Rule 9 provides that the President and General Secretary of the Sansthan shall supply a certified list of Patrons, Life members and Associate members of the Sansthan before 15th April every year to the Society and the Society shall register the names of such Patrons, Life members, and Associate members, in the Register of its members also.
Under Rule 10 (1) the Governing Council may remove a Foundation member, a Patron, a Life member, an Associate member or an Ordinary Member from membership if he incurs any of the ineligibilities given under Sub-Clause (a) to ( g) of Rule 10 (1). The Proviso to the Sub-rule says that a person against whom action under Rule 10 (1) is contemplated may be afforded an opportunity to be heard in camera before action is finally taken but he will not be given anything in writing in relation to allegations against him.
Under Rule 11 the Composition of the Governing Council has been given in detail. The Governing Council would be composed of 17 members in accordance with Article 3 of the Memorandum of Association out of which four members, referred to in Clause (b) of Article 3 of the Memorandum of Association would be elected members. The Governing Council has to elect three from amongst Patrons and Life members and one from amongst Associate and Ordinary members. All casual vacancies among the members, other than Foundation members of the Governing Council, were to be filled up by election by other members of the Council present in the Meeting specially convened for the purpose of which 15 days notice had been given to each member of the Council. The term of an elected members was three years and he was eligible for re-election. Under Rule 11 (I) a Member of the Governing Council could be removed if he incurred any of the ineligibility is mentioned in Sub-clause 1 to 5 of Rule 11 (I). No member of the Governing Council could be removed from his office, unless a resolution to that effect has been passed by the Governing Council at a Special Meeting convened for the purpose, by a majority of not less than three-fourth of the total members present and voting and of which at least 30 days notice had to be given to each member.
Under Rule 12 all the affairs of the Society and the Management and Control of its Institutions and Organizations run by the Society alongwith its property of every nature was to vest in the Governing Council. Under Rule 12 (2) (I) the Governing Council was competent to institute, conduct, defend, compound or abandon any legal proceedings by or against the Society.
Under Rule 12 (3) the Governing Council may subject to its general control and supervision, and such instructions as it may like to impose, delegate all or any of its powers to any person. Under Rule 16, the notice of meeting of the Council had to be served seven days before the date of the meeting. An emergent meeting of the council would be called at 48 hours notice.
125. This meant that for an Ordinary meeting of the Governing Council seven days notice was required. Fifteen days notice was required for a meeting of the Council to induct a Foundation member. In case of Removal of a member of the Council, "not being a Foundation member", thirty days notice was required to be given.
Under the Rule 17 the General body was to be composed of all members of each category including the Patrons. The quorum for a meeting for the General body was eight members. Under Rule 23 (a), the office bearers or the Committee of Management of the Society have been given as the President, Vice President and Honorary General Secretary elected by the Governing Council from amongst the Foundation members. In case of a Vice President or a Joint Secretary, they could be elected Members of the Council. Governing Council could also a Treasurer or a Joint Secretary. The term of the office bearers was three years but could be curtailed by the Governing Council under special circumstances. The retiring office bearers were eligible for re-election.
Under Rule 23 the outgoing office bearers would carry on discharging their duties until their successors in office were elected or appointed as the case may be, and had taken over charge. Under Rule 24 (1) the President would be the Chief Executive Head of the Society. He would function for and on behalf of the Society during the absence of the Council. All such actions shall be brought to the notice of the Council in due course. Under Rule 24 (2) the Vice President would exercise the powers of the President during his absence or when on leave. The President could delegate any functions, duties, and powers to the Vice President for any specified time.
Under Rule 24 (3), all functions of the Council/Executive Business of the Society were to be carried out by the Honorary General Secretary. The General Secretary was to place all policy and other important matters before the President and obtain orders thereon. The President would call for any papers from the General Secretary and pass such orders on them as he deemed fit and the Secretary was to follow the directions issued by the President. Under Rule 25 the Society was to sue or be sued in the name of the General Secretary or such other person who may be appointed by the Governing Council for the said purpose.
126. Under the Societies Registration Act, the Registrar does not have power to interfere in the normal functioning and internal affairs of the Society. If during the ordinary course of business, action is taken against a member, he cannot examine the resolution and its validity. The powers of the Registrar in interfering in the affairs of the Society are given under Section 24 of the Act and in case the Committee of Management does not hold the election within time i.e. it does not announce an election programme before the end of its tenure, the Societies Registration Act provides that the Registrar under Section 25(2) of the Act can declare the Committee of Management as time barred and take over the power to hold elections either by himself or by his nominee. Under Section 24 of the Act, on information received under Section 22 or otherwise or in circumstances referred to in sub-section (3) of Section 23, if the Registrar is of the opinion that there is an apprehension that the affairs of the Society registered under the Act are being so conducted so as to defeat the objects of the Society or that the Society or its Governing Body or any officer in control thereof is guilty of mismanaging its affairs or any breach of fiduciary or other obligations, then Registrar may either himself or by any person appointed by him in that regard, investigate and inspect the affairs of the Society or of any institution being run by it, the Registrar may call for the records and inspect the same and on conclusion of such inspection, may pass orders and give such directions to the Society or to its Governing Body or the office bearers, as he may think fit, for the removal of any defects or deficiencies within such time, as may be specified by him and in the event of default in taking action, the Registrar may proceed to take action under Section 12-D or Section 13-B as the case may be. As far as working of the Society is concerned, the Registrar cannot go beyond the powers mentioned under Section 24 of inspection and investigation and giving directions and orders to remove defects by the office bearers or to take action against such office bearers under Section 12 or Section 13 of the Act. Insofar as the working of the Society on a day-to-day basis is concerned, in respect to the induction into the membership or expulsion of certain members from the membership of the Society, which comes within the ordinary course of business of the Society, the Registrar has no role to play.
127. Further, Section 4-B of the Act was introduced by way of amendment by U.P. Act No.23 of 2013 in October, 2013. Only under this newly added Section, at the time of Registration, Renewal of the Society, the list of members of the General Body of that Society, shall be filed with the Registrar, mentioning the name, parentage, address and occupation of the members and the Registrar shall examine the correctness of the list of members of the General Body of such Society on the basis of the Register of members of the General Body and the Minutes Book thereof, the Cash Book, Receipt Book of Membership fee, and Bank Passbook of the Society.
128. Sub-section (2) of Section 4-B provides that if there is any change in the list of members of the General Body of the Society referred to in sub-section (1), on account of induction, removal, resignation or death of any member, a modified list of General Body members shall be filed with the Registrar within one month from the date of such change.
129. Sub-section (3) of Section 4-B provides that the list of General Body members should be signed by two office bearers and two Executive Members of the Society. The impugned order passed by the Deputy Registrar on 26.7.2010 interfering with the resolution of the Society regarding expulsion of certain members for misconduct, could not have been looked into by the Registrar before the introduction of Section 4-B by way of amendment in October, 2013. The feeble attempt made by the learned counsel for the private respondents to argue that the Registrar derived jurisdiction to look into the expulsion of members because of judgment and order of the Court in Writ Petition No.2353 (M/S) of 2010 falls flat on its face as no Court can confer jurisdiction on any authority against the provisions of the Statute as has been held by a Constitution Bench in A.R. Antulay Vs. R.S. Nayak and another; 1988 (2) SCC 602.
130. Even on merits, in the order dated 26.07.2010, one of the grounds taken by the Registrar for cancelling the resolution dated 15.3.2008 was that on perusal of the Proceedings Register, it was apparent that the Minutes of the meetings were mentioned in a haphazard manner, i.e. meetings which took place later on were mentioned before the Minutes of meetings, which took place before them. Vishnu Bhagwaan Agarwal in his representation dated 23.12.2008 did not take any such ground. Even in the show cause notice issued by the Deputy Registrar on 25.09.2009 to Nagendra Nath Singh, there was no mention of any such objection. Had he mentioned such objection, the petitioner no.2 would have given an explanation to the same. Vishnu Bhagwaan Agarwal expelled Nagendra Nath Singh in the meeting dated 27.4.2007 and was thereafter, at the helm of the affairs of the Society. Even after the order passed on 7.7.2007 by the Deputy Registrar, restoring Nagendra Nath Singh as President of the Society, Vishnu Bhagwaan Agarwal filed Writ Petition No.3299 (MS) of 2007, where there was an interim order operating since 10.7.2007 till the disposal of Special Appeal No.615 of 2007 on 17.7.2007. Even thereafter, Vishnu Bhagwaan Agarwal did not return the Proceedings Register till dismissal of Writ Petition No.3299 (MS) of 2007 by this Court on 15.2.2008. He continued to withhold the Proceedings Register thereafter also despite judgment of this Court against him on 12.8.2008. After filing of Review Petitions by Nagendra Nath Singh, Veer Sen and Vishnu Bhagwaan Agarwal, this Court entertained the same and passed an order on 17.9.2008 after which, the Proceedings Register was returned by Vishnu Bhagwaan Agarwal.
131. Since a show cause notice was issued by the Deputy Registrar on the representation of Vishnu Bhagwaan Agarwal to Nagendra Nath Singh as President of the Society and was addressed to him in his personal capacity, the Governing Council of the Society met on 22.7.2010 and authorized Nagendra Nath Singh to present the Society's case before the Deputy Registrar. An application for adjournment was moved by Nagendra Nath Singh on 24.7.2010, saying that an application for recall of the order dated 28.5.2010 had been filed on 23.7.2010, which was pending disposal before the Court, therefore, the hearing on the representation of Vishnu Bhagwaan Agarwal be postponed. The Deputy Registrar, however, passed the order on 26.07.2010 without waiting for disposal of the recall application. The order passed by the Deputy Registrar on 26.07.2010, having been passed without jurisdiction, is set aside.
132. Section 25 Sub-section 2 of the Societies Registration Act is being quoted here in below :- "where on an order being made under subsection (1) an election is set aside or the office bearers are held no longer entitled to continue in office or the Registrar is satisfied that any election of office bearers of the society has not been held within the time specified in the rules of that Society, he may call meeting of the General Body of the 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 authorized by him in this behalf, and the provisions in the Rules of the Society relating to meetings and election shall apply to such meeting and elections with necessary modifications."
Under Section 25 Sub-clause (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.
A bare perusal of the aforesaid Sub Sections to Section 25 would establish that the right to convene a meeting for the purpose of holding of election of the office bearers of the Society is not lost in the outgoing Committee of Management after the expiry of the term automatically. It is only when the Registrar passes an order under Sub-section (2) of Section 25 of the Act for convening a meeting of the General Body of the Society for the purpose of holding a fresh Election of the Committee of Management that the outgoing office bearers are debarred from convening a meeting for the said purpose. The Byelaws of the Society prescribed a term of three years for the office bearers but there is no provision in the Byelaws that makes the elected office bearers defunct after three years.
133. In fact under Rule 23 (d) of the Byelaws of the Society, there is a specific provision that the office bearers shall continue to hold office till such time that their successors are elected, as such no vacuum is contemplated in the Byelaws even after the term of the Committee of Management expires. When the Deputy Registrar issued a direction to the President of the Society to hold elections after completion of induction of Foundation members in accordance with the Byelaws of the Society, and in pursuance thereof Nagendra Nath Singh had issued an Election Programme on 28.12.2011 i.e. before the term of the office bearers expired on 31.12.2011, there was no occasion for the Deputy Registrar to pass the order impugned dated 10.01.2012 directing for holding of elections by him under Section 25 (2) of the Act the Registrar. The order dated 10.01.2012 has completely ignored the provisions of the Byelaws of the Society which clearly prescribed under Rule 23 (d) for the office bearers to continue till their successors are appointed and take over charge. The Registrar has not expressed any satisfaction as is required in accordance with the language of subsection (2) of Section 25 that the election of the office bearers of the Society had not been held within the period specified under the Byelaws of the Society. The order passed on 10.01.2012 being completely without jurisdiction, this Court is satisfied that any person who was a valid member of the Society could have challenged such an order and it was not necessary for the Governing Council of the Society to authorize a person in the absence of the Secretary, to file a writ petition challenging the same issue. Nagendra Nath Singh in his capacity as the outgoing President was also the Chief Executive Officer of the Society as per the Byelaws of the Society, he was entitled to approach this Court in his personal capacity also. He nevertheless approached this Court by making the Moti Lal Memorial Society as Petitioner No.1 through the Joint Secretary Mrs. Usha Chaudhary as the then Secretary of the Society Professor Lal Amarendra was no longer a member since August 2010.
134. This Court in a Division Bench judgment rendered in Ratan Kumar Solanki versus State of U.P., 2010 (1) UPLBEC 369, has held in its judgment and order dated 16.11.2009 that if a person can show that he has come on behalf of the Society and is also a person aggrieved, he has locus standi to file a writ petition.
135. In Ratan Kumar Solanki (supra), this Court observed in Paragraph 24 as under:
"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 expousing 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 etc., would be a 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."
136. On the other hand, a Division Bench of this Court while considering the law as settled in Ratan Kumar Solanki (supra) in its judgment and order dated 7.9.2010 in Special Appeal No.1380 of 2008: Rajveer Singh versus State of U.P. and others, observed as under:
"This Court is already over-burdened with the writ petitions filed by the rival Committees of Management, or the members, who have taken part in the elections, and did not succeed, in the matters arising out of thousands of educational institutions across the State. Every year thousands of writ petitions are being filed. In fact every election of the Committee of Management of educational institution is challenged in the High Court, on the question of its recognition by the Regional Deputy Director of Education (now the Regional Level Committee), under Section-16A (7) of the UP Intermediate Education Act, 1921. A single Judge has been assigned determination relating to only such matters. The valuable time of the Court for deciding important questions of law to reduce inequities and injustice in the society, is spent in resolving disputes between rival groups to gain control over the educational institutions for the purpose of access to the funds provided by the State Government. In most of the cases the Courts find that the elections are set up only on papers, without holding election meetings.
If the individual members of the general body of the educational society not directly affected by the election results, are also allowed to file objections and to challenge the elections, the fight for gaining control over the school funds will flood the High Courts with litigation. The election may be challenged by members of the general body separately after raising objections before the educational authorities, and thereafter filing writ petitions on variety of grounds.
We may add here that an individual member in such case, is not without remedy. He may file a suit challenging the elections, to enforce his right of association guaranteed under Section 19 (1) (g) of the Constitution of India."
137. In Panna Lal (supra), this Court observed in Paragraph-19 thus:
"19. In my view, the principle of law which emerges is that though there is no absolute prohibition for maintainability of writ petition at the instance of an individual member but it is a matter of judicial discretion to entertain such writ petition or not. For the said purpose, the Court is guided by well established legal principles on basis of which writ petition is entertained. If it transpires that the individual member is not directly affected by the elections' result but is expousing the cause of the collective body or the members of the collective body, this Court may decline to go into the controversy at his instance. While considering the said question, the totality of facts and circumstances of the case have to be taken into consideration."
138. This Court in Jagdambika Prasad Pandey vs. State of U.P. and others, 2019 SCC Online All 4195, after placing reliance upon several such observations made by co-ordinate Benches and also the Division Benches of this Court, came to a conclusion that in case the action of the authorities is, on the face of it, illegal or without jurisdiction, it can be challenged even by individual members of the society. Such a challenge shall be entertained to protect the Right of Association of such a member guaranteed under Article 19(1)(c) of the Constitution of India.
139. Moreover, the Supreme Court in its judgment rendered in K. Venkatachalam vs. A.Swamickan and others (1999) 4 SCC 526, has held in Paragraphs 27 and 28 that if a decision is totally without jurisdiction and against the provisions of the Act, the High Court could well interfere in the matter in writ jurisdiction.
140. In K.Venkatachalam (supra), the Supreme Court observed that alternative remedy cannot be said to be an absolute bar. The High Court in writ jurisdiction has a very wide powers, which cover all violations of the law or the Constitution when recourse to other remedies provided by law are inappropriate due to their complexity, which result in delays. The Supreme Court observed in Paragraphs 27 of the said judgment that Article 226 is cast in the widest possible terms and unless there is a clear bar to the jurisdiction of the High Court, its powers under Article 226 can be exercised where there is any act, which is against any provision of law or violative of constitutional provisions and when recourse cannot be there to the provisions of the Act for the appropriate relief. The Supreme Court was considering a case where a person was not even qualified to be an elector of the constituency impersonated another in the nomination papers and then contested the election and sat and voted in the legislative assembly of Tamil Nadu. The Supreme Court observed that such a person knew that he was disqualified, yet he impersonated another person and filed his nomination on an affidavit and he may also be held to be criminally liable for such action. If in such a case, he is allowed to continue to sit and vote in the assembly, his action would be a fraud on the Constitution. The High Court rightly exercised its jurisdiction in entertaining the writ petition and declared that the appellant was not entitled to sit in the Tamil Nadu Legislative Assembly and put a consequent restraint order on him.
141. Now I shall deal with all the applications that have been filed by respective parties to the litigation in order of their filing.
In Writ Petition No.4528 (M/S) of 2010, an application for dismissal of the writ petition raising preliminary objection as to its maintainability was filed by Vimal Kumar Sharma registered as Application No.68852 of 2012. This application having been considered along with the counter affidavit filed by the respondent no. 5 to the writ petition itself needs no separate orders to be passed there on.
In the same writ petition, an Application No.81569 of 2012 was filed on 17.09.2012 by the respondent no.4 who is no more. It also relates to the objection regarding maintainability of the petition and after death of Vishnu Bhagwaan Agarwal, it has become infructuous and is dismissed as such.
In Writ Petition No.4528 (M/S) of 2010, an Application No.50531 of 2013 was filed on 22.05.2013 by Professor Lal Amrendra that he had been restored on the position of General Secretary by the Deputy Registrar's order dated 30.11.2012 and he be impleaded as an opposite party. No counsel has pressed this application and it is rejection for non-prosecution.
In the same writ petition Application No.61899 of 2013 was filed by Sri Vivek Raj Singh, on 16.07.2013 where the deponent Kunwar Reoti Raman Singh prayed for amendment in the array of the parties. This application is allowed and Kunwar Reoti Raman Singh is permitted to Pursue the writ petition on behalf of the Society in view of the observations made here in above in this judgement.
Moreover, in North Eastern Railway Administration Gorakhpur vs. Bhagwaan Das; 2008 (8) SCC 511, the Hon'ble Supreme Court observed in paragraph-16 that Order VI Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil and others; (1957) SCR 595, which still holds the field, it was held that all amendments are to be allowed which satisfy the two conditions: "(A) of not working injustice to the other side, and (B) of being necessary for the purpose of determining the real question which is in controversy between the parties. Amendments should be refused only if the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs."
An application was also filed on 04.09.2018 by the counsel for the petitioners which has remained pending for deleting the names of opposite party no.4 and 6 as they were both dead registered as Application No.97000 of 2018. This application is allowed.
In Writ Petition No.367 (M/S) of 2012, Application No.17772 of 2012 has been filed on 22.12.2012 by Professor Lal Amrendra paying for substitution which application has not been pressed by any counsel and is rejected for non-prosecution.
Application No.98 of 2013 has been filed on 19.04.2013 praying for permission to persue the writ petition on behalf of the Society by Kunwar Reoti Raman Singh, this application is allowed in view of the observations made here in above in this judgement.
An Application No.61901 of 2013 has also been filed by Kunwar Reoti Raman Singh on 16.07.2013 for amendment in the array of the petitioners and for substitution of the name of the Kunwar Reoti Raman Singh in place of President Late Nagendra Nath Singh, as sitting Vice President of the Society. This application is also allowed.
In the same writ petition, an application for dismissal has been filed Registered as Application No.52702 of 2018 on 07.05.2018 with a prayer for vacation of interim order dated 13.02.2012 on behalf of Vimal Kumar Sharma Which has become infructuous, as a Special Appeal was filed praying for the same relief as mentioned in this Application which has been disposed of by the Division Bench without granting this prayer to the respondent. This application thus stands rejected.
142. The orders dated 10.01.2012 and 16.01.2012 challenged in Writ Petition No.367 (M/S) of 2012 and Writ Petition No.430 (M/S) of 2012 for the reasons aforesaid, are set aside. All consequential actions taken in pursuance of orders dated 26.07.2010, 10.01.2012 and 16.01.2012 are also rendered null and void ab initio.
143. Writ Petition No.4528 (M/S) of 2010, Writ Petition No.367 (M/S) of 2012 and Writ Petition No.430 (M/S) of 2012 stand allowed and Writ Petition No.918 (M/S) of 2013 stands dismissed.
144. It has been submitted by the learned counsel for the petitioner that after 31.12.2008 no valid elections have been held. The elections held on the orders of the Deputy Registrar in February 2012 have lost their efficacy after the orders of the Deputy Registrar himself on 30.04.2013. It has also been submitted that the Judgement in these writ petitions has to be declared by this Court on the basis of facts as are pleaded before this Court at the time when the writ petition were filed. Reference has been made to Rule 23(d) of the Byelaws which states that the Committee of Management shall continue till the successors are appointed.
This Court, however, finds on due consideration of all submissions made before it that since the Society runs several Educational and Charitable Institutions and there is great animosity generated amongst the members of the Society due to repeated litigations, it would be appropriate that this Court constitutes a Committee of respected and responsible citizens to look after the affairs of the Institutions run by it.
During the time when this bunch of petitions was heard and judgment was reserved, this Court received a written request dated 13.11.2019 from Justice S.U. Khan (Retd.) to be relieved of the responsibilities given to him by this Court's order dated 26.04.2013.
This Court is also convinced that a Committee of two Members only shall not be able to discharge the responsibility of running the Society and its Institutions in the period during which the elections to the various constituents of the Governing Council are held and new office bearers take charge.
I, therefore, nominate four persons as Members of the new Interim Committee to look after the affairs of the Society and the institutions, namely, employees and staff run by it.
Justice (Retd) Arun Tandon, Allahabad High Court has graciously consented to be the Chairman of the Interim Committee. Sri Birendra Chaubey, Retired Special Secretary, Finance Department, U.P., Sri Murli Dhar Rai, Retired Officer-on-Special Duty, Finance Department, U.P. and Sri V.K. Mathur, Senior Auditor, Retired from Department of Industries, U.P., shall be the three others members of the Interim Committee.
Rs. One Lakh per month shall be given to the Chairman Hon'ble Mr. Justice Arun Tandon (Retd.) and Rs.75,000/- per month to each of the other members of the Committee along with actual expenses from the funds of the Society as honorarium in appreciation of their efforts to bring back the Society on its feet.
All papers, documents, files shall be handed over by the present Interim Committee to this Committee of five Members. The Registrar, Firms, Societies and Chits, U.P. and Deputy Registrar, Lucknow Region, Lucknow, shall provide all necessary assistance regarding documents available in their office to the members of the Interim Committee.
145. There are undisputedly five Foundation Members who are alive; they being Kunwar Reoti Raman Singh, Raja Anand Singh, Dr. Dauji Gupta, J.R. Tripathi and Mata Prasad. For filling up nine vacancies of Foundation Members, steps be taken first. Thereafter, steps be taken to fill up four vacancies in the Governing Council for which elections be held, in accordance with the procedure prescribed under the Bye-laws of the Society.
The last undisputed election to the Society were held under the supervision of the Registrar, Firms, Societies and Chits, U.P on 31.12.2008. The Interim Committee shall procure the list of the Members of the General Body of the Society utilized in the elections held on 31.12.2008 from the office of the Deputy Registrar, Firms, Societies and Chits, Lucknow Region, Lucknow and shall publish this list within one month in two widely read newspapers of the State, one English Daily and one Hindi Daily and invite objections to the said list. All objections are to be filed within three weeks and the list be finalized thereafter within a further period of three weeks. After the list is finalized, it will be utilized for the purpose of election of four elected members of the Governing Council.
It is expected that the Interim Committee constituted by this order of the Court shall be extended all cooperation by the existing staff of the Society and the office of the Deputy Registrar. The election as aforesaid, shall be held within a maximum period of six months under the guidance of this Interim Committee which shall hand over charge to the newly elected office bearers soon thereafter.
The Registry of this Court shall inform about the order passed today by this Court to the Chairman and Members of the Interim Committee appointed by this Court as aforesaid along with a copy of this order.
Dated: 11th June, 2020 Rahul/Sachin/PAL [Justice Sangeeta Chandra]