Allahabad High Court
C/M Jan Sewa Shiksha Prasar Samiti And ... vs State Of U.P. And Others on 14 February, 2014
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 21.01.2014) (Judgment delivered on 14.02.2014) Court No. 38 Civil Misc. Writ Petition No. 29785 of 2011. Committee of Management, Jan Sewa Shiksha Prasar Samiti and others. .... .......Petitioners. Versus State of U.P. and others. ..... .......Respondents. ------- Hon'ble Pradeep Kumar Singh Baghel, J.
1. The Committee of Management of a society, registered under the provisions of the Societies Registration Act, 1860, and his two office-bearers have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India against the order of the Prescribed Authority dated 19th April, 2011, whereby it has accepted and recognised the election held on 28th September, 2010 by the contesting respondent no. 4 and has rejected the election of the petitioners held on 30th September, 2010.
2. The foundational facts, which are necessary to decide the issue involved in this writ petition, are that Jan Sewa Siksha Prasar Samiti, Osa, Kherhat Khurd, Allahabad (for short, the "Society") is a Society registered under the Societies Registration Act, 1860, as applicable in Uttar Pradesh (for short, the "Societies Registration Act"). The main object of the Society is to promote the cause of education. It is undisputed that last election of the Committee of Management of the Society was held on 08th October, 2005, wherein petitioner no. 3, namely, Sri Ram Pal Singh was elected as President and the respondent no. 4 Sri Awadh Kumar Singh was elected as Manager. The term of the office-bearers is 5 years. It is averred by the petitioners that there were serious charges of financial misdemeanor against the Manager Sri Awadh Kumar Singh, the respondent no. 4 herein, and, therefore, in the meeting of the Committee of Management, which was held on 27th December, 2009, a resolution was passed for removal of Sri Awadh Kumar Singh from the office of Manager and one Sri Jai Singh was appointed as Manager for the remaining term of the Committee of Management. The papers were sent to the office of the Assistant Registrar, Firms, Societies and Chits, Allahabad (for short, the "Assistant Registrar"), who, after affording opportunity to the petitioners and the respondent no. 4, passed an order dated 16th July, 2010, wherein he discarded the resolution dated 27th December, 2009 for removal of Sri Awadh Kumar Singh but in the same order the Assistant Registrar has found that the term of the Committee of Management was expiring and, as such, fresh election may be held on the basis of the electoral roll, which was utilized in the previous undisputed election dated 08th October, 2005. It is significant to mention that before the election held on 08th October, 2005 there was no dispute with regard to the electoral roll of the Society. Hence, the Assistant Registrar directed the office-bearers to hold the fresh election accordingly.
3. Dissatisfied with the order of the Assistant Registrar, the respondent no. 4 preferred a writ petition, being Writ-C No. 52234 of 2010 (The C/M Jan Sewa Shiksha Prasar Samiti and another v. The Asstt. Registrar, Firms, Societies and Chits and anr.), before this Court. This Court did not find any error in the direction of the Assistant Registrar for holding the election on the basis of the electoral roll of 2005-06 and as such, this Court dismissed the writ petition vide order dated 07th September, 2010. The order of this Court dated 07th September, 2010 was not challenged by any of the members and it was allowed to attain finality between the parties.
4. The petitioners state that in compliance with the order of the Assistant Registrar dated 16th July, 2010, which was affirmed by this Court vide order dated 07th September, 2010, the election was held on 30th September, 2010. In the said election, the petitioner no. 3 was again elected as President and one Sri Jai Singh, the petitioner no. 2, was elected as Manager. It is stated that the said election was held on the basis of the electoral roll comprising 30 members. Accordingly, the papers were sent to the office of the Assistant Registrar. In the meantime, the respondent no. 4 set up a parallel claim based on the election dated 28th September, 2010, which was held by a separate electoral roll comprising 36 members. Thus, the present dispute relates to two different electoral rolls.
5. The Assistant Registrar, after hearing all the concerned parties, vide its order dated 01st December, 2010 recognised the election of the petitioners held on 30th September, 2010 and directed to register the list of office-bearers. The Assistant Registrar also issued the renewal certificate of the Society on the application of the petitioners. The petitioners have filed the renewal certificate dated 01st December, 2010 as annexure-6 to the writ petition.
6. Feeling dissatisfied with the order of the Assistant Registrar dated 01st December, 2010, the respondent no. 4 preferred a writ petition, being Writ-C No. 72373 of 2010 (The Committee of Management and another v. The Assistant Registrar and another), which was allowed by this Court vide order dated 14th December, 2010 on the ground that the Assistant Registrar had no jurisdiction to decide the election dispute as the said dispute falls under the jurisdiction of the Prescribed Authority in terms of Section 25 (1) of the Societies Registration Act. Consequent upon, the matter stood referred to the Prescribed Authority to adjudicate upon the dispute. The Prescribed Authority vide impugned order dated 19th April, 2011 has rejected the claim of the petitioners and has recognised the election of the Committee of Management headed by the respondent no. 4. Against this background, the petitioners have filed the present writ petition.
7. A counter affidavit has been filed by the respondent no. 4. The stand taken in the counter affidavit is that the Prescribed Authority has rightly accepted the electoral roll comprised of 36 members and since the meeting dated 30th September, 2010, wherein the petitioners' election has been held, was not convened in terms of the bye-laws, the Prescribed Authority has rightly discarded the election of the petitioners.
8. I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri S.N. Shukla, learned Counsel for the petitioners, Sri R.K. Ojha, learned Senior Advocate, assisted by Sri Satyendra Tripathi, learned Counsel for the respondent no. 4, and learned Standing Counsel, who appears for the State functionaries.
9. Sri Ashok Khare, learned Senior Advocate appearing for the petitioners, submits that the order of the Assistant Registrar dated 16th July, 2010, wherein he had directed that the fresh election would be held by the electoral roll which was utilized in the undisputed election dated 08th October, 2005, has attained finality as said order of the Assistant Registrar was affirmed by this Court in Writ-C No. 52234 of 2010 vide order dated 07th September, 2010, therefore, the Prescribed Authority has grievously erred in ignoring the judgement of this Court dated 07th September, 2010. He further submits that the finding of the Prescribed Authority that the meeting dated 30th September, 2010, in which the petitioners were elected, was illegal as it was not convened by the Manager of the Society, is perverse. He has drawn the attention of the Court to Clause- 9 (Gha) of the bye-laws of the Society, which provides that the meeting of the General Body and the Executive Body shall be convened by the President of the Society and he shall preside over such meeting. He further urged that the finding of the Prescribed Authority that in the bye-laws the Manager alone can enrol the members, is incorrect and contrary to the bye-laws. Sri Khare has vehemently urged that if the Manager alone is authorised to enrol the members, that will be against the settled principle with regard to democratic functioning and is also contrary to the rights of the members of the general to form association guaranteed under Article 19 of the Constitution of India. Sri Khare lastly urged that the meeting, in which several members have been enrolled by the respondent no. 4, was contrary to the bye-laws and thus, the meetings were illegally convened without permission of the President, therefore, the Prescribed Authority has erred in accepting those members, who were enrolled in an illegal meeting.
10. Sri R.K. Ojha, learned Senior Advocate appearing for the respondent no. 4, submits that Clause-19 of the bye-laws provides that after every five years, a meeting of the General Body shall be held which shall be convened by the Manager alone. He further submits that this Court in its order dated 07th September, 2010 passed in Writ-C No. 52234 of 2010 has not recorded any finding with regard to the electoral roll of the Society. Sri Ojha has drawn the attention of the Court to the order of this Court dated 07th September, 2010, wherein it is recorded that the Assistant Registrar has not decided any dispute with regard to continuance of the members of the Committee of Management or membership of the General Body. Therefore, he submits that the election held by the petitioners in compliance with the order of the Assistant Registrar dated 16th July, 2010 was not valid.
11. Learned Standing Counsel has tried to justify the findings recorded by the Prescribed Authority and he has adopted the submissions made by Sri Ojha.
12. I have considered the respective submissions advanced by the learned Counsel appearing for the parties and perused the record.
13. It is a common ground that the election of the office-bearers held on 08th October, 2005 was undisputed. In the said election, the petitioner no. 3 was indisputably elected as President and the respondent no. 4 Sri Awadh Kumar Singh was elected as Manager. Said election was held on the basis of electoral roll comprising of 30 members. This electoral roll was undisputed as for the first time the dispute arose when a no-confidence motion was passed against the respondent no. 4 on the ground of financial misdemeanor. The Assistant Registrar vide its order dated 16th July, 2010 taking the view that the term of the office-bearers was going to complete, issued a direction for holding the election on the basis of undisputed electoral roll. The respondent no. 4 has challenged the said order before this Court but his writ petition was dismissed. Learned Counsel appearing for both the sides have tried to read the operative portion of the order of this Court dated 07th September, 2010 in different ways. Therefore, for the sake of convenience, the relevant portion of the order dated 07th September, 2010 is extracted herein-below:
"Insofar as the second portion is concerned the Assistant Registrar has found that the election of 2005-06 (dated 08.10.2005) was not disputed and the Petitioner No. 2 was elected as Manager and the Respondent No. 2 was elected as President. It is also not disputed that the term of the Committee of Management is 5 years. It is also not disputed that the next election is due on or before 08.10.2010.
In view of the aforesaid undisputed facts the recitation in the impugned order is to be considered. The Assistant Registrar has not decided any dispute with regard to continuance of members of the Committee of Management or the membership of the General Body. He has only recorded his satisfaction that the General Body which elected the Committee of Management on 08.10.2005 is the body which is to elect the Committee of Management in the next election. No error can be found in the aforesaid recitation in the impugned order.
For the aforesaid reasons, no illegality can be found in the impugned order. The writ petition has no merits and is, accordingly, dismissed.
No order is passed as to costs."
(Emphasis supplied by me)
14. A perusal of the order of this Court, referred to above, would make it clear that this Court has observed that the Assistant Registrar has recorded his satisfaction that the General Body which elected the Committee of Management on 08th October, 2005 is the Body which is to elect the Committee of Management in the next election. The use of the words "next election" is significant. The order of this Court dated 07th September, 2010 was not challenged by either of the parties, therefore, in my view, the Prescribed Authority has failed to consider this aspect in the impugned order and on this ground alone, the order of the Prescribed Authority is unsustainable.
15. In compliance with the order of the Assistant Registrar dated 16th July, 2010 and the order of this Court dated 07th September, 2010, fresh elections have been held on two different dates. The petitioners held their election on 30th September, 2010 on the basis of the electoral roll which was utilized in the year 2005-06 as per the direction of the Assistant Registrar as approved by this Court. Rival election, which was held on 28th September, 2010, was based on an electoral roll comprising 36 members, several members of which were enrolled in the meetings held on the following dates:
Date of Meeting No. of Members enrolled
(i) 25th July, 2006 7
(ii) 20th December, 2007 2
(iii) 10th September, 2008 5
(iv) 04th June, 2009 2
16. Respondent no. 4 has also claimed that 4 members had resigned on 05th September, 2006 and 4 members were removed in the meeting held on 15th May, 2009.
17. Thus, the respondent no. 4 has held the election on the basis of a different electoral roll. This issue has not been adverted to by the Prescribed Authority on the ground that in Writ Petition No. 72373 of 2010 this Court vide its order dated 14th December, 2010 has rejected the electoral roll finalised by the Assistant Registrar in his order dated 01st December, 2010. The Prescribed Authority has not considered the order of this Court dated 14th December, 2010 passed in Writ Petition No. 72373 of 2010 in the right perspective, as this Court had set aside the subsequent order of the Assistant Registrar on the ground of violation of principle of natural justice and the matter was remitted to the Prescribed Authority to determine the electoral roll. The relevant part of the order of this Court dated 14th December, 2010 reads as under:
"Having heard learned Counsel for the parties, the manner in which the notice was served on the petitioner does indicate that the order has been passed hastily without waiting for reply of the petitioner. Apart from this, in view of the fact that the term had come to an end and the elections had to be held."
18. The Prescribed Authority has also erred in not considering the true import of Clause-9 of the bye-laws, which deals with the powers and duties of the President of the Society. Clause-9(Gha) provides that the meeting of the General Body and the Executive Body shall be called upon by the President and he shall preside the meeting of the General Body. The submission of Sri Ojha, learned Senior Advocate appearing for the respondent no. 4, that Clause-19 of the bye-laws empowers the Manager to call the meeting without permission of the President, has hardly merit acceptance. Clause-19 of the bye-laws reads as under:
"19& lfefr dh lk/kkj.k cSBd %& bl cSBd esa lfefr ds lHkh lnL; Hkkx ysaxsa ftldk vk;kstu Lo;a izcU/kd izfr ikap o"kZ ckn djsxk A cSBd dh lwpuk ,ts.Mk esa izcU/kd }kjk mfpr
19. Pertinently, Clause-11 of the bye-laws, which deals with the powers and duties of the Manager, also provides that all the meetings of the Executive Body shall be convened by the Manager with the permission of the President. Clause-11 (Ga) of the bye-laws reads as under:
"¼x½ dk;Zdkfj.kh dh gj cSBd dk vk;kstu v/;{k dh lgefr ls izcU/kd djsxkA dk;Zdkfj.kh ds pkj ij vf/kd lnL;ksa ds ekax ij cqykbZ xbZ cSBd ds fy;s v/;{k dh lgefr vko';d u gksxh] ijUrq ,d lkFk ,d ckj esa v/;{k ,oa izcU/kd nksuksa vko';d cSBd ugha cqyk ldrs ftldh cSBd igys gksxh ogh ekU; gksxh A"
20. From a careful reading of Clause-11 of the bye-laws it is evident that permission of the President is not necessary in case the meeting is called on the request of four or more members of the Executive Body. Therefore, it cannot be said that the Manager alone had the authority to convene the meeting. If the interpretation of Sri Ojha is accepted, then Clause 9 (Gha) of the bye-laws shall become redundant. This view also finds support from the conjoint reading of Clause-11 (Ga) and Clause-19 of the bye-laws. In the present case, the meetings were called by the Manager alone and not on the requisition of four or more members of the Executive Body. Therefore, in my view, the finding of the Prescribed Authority that the meeting called by the Manager was valid, is contrary to the bye-laws of the Society.
21. In view of the aforestated reasons, the impugned order dated 19th April, 2011 passed by the Prescribed Authority needs to be set aside and it is accordingly set aside. The matter is remitted to the Prescribed Authority to consider the same and pass a fresh order in the light of the observations made herein-above.
22. Thus, the writ petition is allowed.
23. No order as to costs.
Order Date :- 14th February, 2014.
SKT/-
Hon. Pradeep Kumar Singh Baghel, J.
The writ petition is allowed.
For judgement and order, see my order of the date passed on the separate sheets (nine pages).
Dt.- 14th February, 2014.
SKT/-