Allahabad High Court
Shambhu Kumar Tripathi vs The Assistant Registrar, Firms, ... on 10 February, 1993
Equivalent citations: AIR1994ALL209, AIR 1994 ALLAHABAD 209, 1994 ALL. L. J. 757, 1993 (2) ALL WC 933, 1993 (22) ALL LR 224, 1993 CO-OP LJ, 1993 (1) UPLBEC 764
ORDER
1. Petition in hand has been filed impugning the order dated 3rd of December 1992 passed by the Asstt. Registrar, Firms, Societies and Chits, Allahabad directing renewal of the registration certificate of the society known as Acharya Kripa Shanker Ramanugreh Tripathi Sansthan, village Ibrahimpur, post Lalgopal Ganj, Allahabad on an application dated 22-6-1992 moved by respondent Sri Harihar Prasad Tripathi.
2. Facts giving rise to the present petition lie in a narrow compass and they are encapsulated as below: Acharya Kripa Shanker Ramanugreh Tripathi Sansthan situate at village Ibrahimpur, post Lalgopalganj, district Allahabad (hereinafter referred to as the 'society') was registered under the provisions of The Societies Registration Act, 1860 (in short the 'Act') originally on 5-12-1981. The following were the office-bearers of the Society at the time of its registration on 5-12-1981:
(i) Harihar Prasad Tripathi, Advocate, Adhyaksh
(ii) Maya Shanker Tripathi, Prabandh Sanchalak
(iii) Dwarika Naresh Shukla, Upadhyaksh
(iv)Shiv Ram Shukla, Upadhyaksh
(v)Lal Pandey, Upadhyaksh
(vi) Shambhu Kumar Tripathi, Maha-mantri
vii) Madhav Raj Pandey, Advocate San-yukta Mantri
viii) Uma Shanker Pandey, Sanyukta Mantri
(ix) Mata Prasad Misra, Sanyukta Mantri
(x) K. D. Singh, Shastri, Koshadhyaksh
(xi)Girija Shanker Misra, Sah Koshadhyaksh.
3. Renewal of the certificate of registration was last done on the application dated 19-4-1988. At that time. Sri Girija Shanker Tripathi and Sri Mata Prasad Misra had ceased to be on the list of office bearers of the society and accordingly, their names did not figure in the list of the office bearers submitted along with the renewal application dated 19-4-1988. However, counter-singa-tures of these iwo members were also obtained on the list of the members of the society submitted along with application for renewal dated 19-4-1988. The application for renewal being well in order, the registration of the society was renewed for a period of five years with effect from 10-10-1985.
4. The five years' period for which the certificate of registration of the society was renewed with effect from 10-10-1985 expired on 10-10-1990. An application for renewal of the certificate of registration was moved by Sri S. K. Tripathi, the petitioner on 1 -6-1992. Along with this application, a list of the office bearers/members of the society was also submitted and it appears that the said list purported to have been counter-signed by only three of the old office bearers while six new office bearers were inducted in place of the old ones, but the counter-signatures of the old office-bearers were not obtained on the application dated 1-6-1992 moved by the petitioner for renewal of the certificate of registration. Accordingly, by letter dated 22-6-1992 issued from the office of the Asstt. Registrar, the petitioner was required to obtain counter-signatures of the former office bearers of the society and in the meantime, another application was moved for renewal of the certificate of registration by respondent namely Sri Harihar Prasad Tripathi on 23-6-1992. The list of the office bearers submitted along with the said application contained the names of the old office bearers and members as they were in the list of 1988. The Asslt. Registrar having noticed discrepancies in the list of the office-bearers/members, submitted along with two renewal applications one presented by the petitioner on 1-6-1992 and the other presented by Sri Harihar Prasad Tripathi on 23-6-1992, issued a notice to the petitioner calling upon him to adduce evidence in the matter in support of his case. It may be worthy of mention here that in the list of office-bearers submitted by the petitioner, Sri D. N. Shukla and Sri Ram Shukla, were the only two old office bearers, besides the petitioner but both these persons filed affidavits before the Asstt. Registrar on 17-9-1992 refuting constitution of the alleged Committee of Management as shown by the petitioner Sri S. K. Tripathi.
5. The Assit. Registrar, Firms, Sociaties and Chits Allahabad, upon a consideration of the matter, held that the proceeding on which the petitioner's application for registration was based, was Farzi (spurious) and it was not in accord with the requirements of the proviso to Section 4(1) of the Act and accordingly, the application dated 1-6-1992 moved by the petitioner was rejected and the application dated 22-6-1992 moved for renewal of the certificate of registration by Sri Harihar Prasad Tripathi was found to be in order and accordingly, direction for renewal of certificate of registration under Section 3-A was issued by the Asstt. Registrar vide order impugned in this writ petition.
6. Sri Yogesh Agarwal, learned counsel appearing for the petitioner urged that the impugned order amounts to usurpation by the Asstt. Registrar, of power vested in the prescribed Authority under Section 25 of the Act. According to Sri Yogesh Agarwal, the Asstt. Registrar, while exercising powers under Section 3A of the Act has nojuridiction to delve into the question relating to continuance in office of an office-bearer of the society.
7. In order to appreciate the question, the related provisions of the Act, in so far as they are relevant may be quoted as below."
"3-A. Renewal of certificate of registration.
(1) Subject to the provisions of sub-section (2), a certificate of registration issued under Section 3 shall remain in force for a period of five years from the date of issue;
Provided that a certificate issued before the Commencement of the Societies Registration (Uttar Pradesh Amendment) Act 1984 (hereinafter in this section referred to as the said Act), shall remain in force for a period of five years from the date of such commencement, on payment of the difference of the fees specified under sub-section (3) and the fees already paid.
(2) A society registered under Section 3, whether before or after the commencement of the said Act, shall on application made to the Registrar within one month of the expiration of the period referred to in sub-section (!) and on payment of the fee specified in sub-section (3), be entitled to have its certificate of registration renewed for (five years) at a time :
Provided that in the case of a society registered before the commencement of the said Act, the Registrar shall refuse to renew the certificate of registration if after giving it an opportunity of showing cause against such refusal he is satisfied that any of the grounds mentioned in sub-section (2) of Section 3 exist in respect theerof.
(3) .....
(4) Every application for renewal of the certificate shall be accompanied by a list of member of the managing body elected after the registration of the society or after the renewal of certificate of registration and also the certificate sought to be renewed unless dispensed with by the Registrar on the ground of its loss of destruction or any other sufficient cause.
XXX XXX XXX XXX 4. Annual list of managing body to be filed-
(1) Once in evey year, on or before the fourteenth day suceeding the day on which according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the (Registrar) of the names, addresses and occupations of other-nors, council, directors Committee, or other governing body then entrusted with the management of the affairs of the society:
Provided that if the managing body is elected after the last submission of the list, the counter-signatures of old members, shall, as far as possible, be obtained on the list. If the old office bearers do not conuntersign the list the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period.
(2) Together with list mentioned in subsection (1), there shall be sent to the Registrar a copy of the memorandum of association including any alteration, extension, or abridgement of purposes made under Section 12, and of the rules of the society corrected up to date and certified by not less than three of the members of the said governing body to be a correct copy and also a copy of the balance-sheet for the preceding year of account.
25. Disputes regarding election of officebearers-
(1) The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit.:
XXX XXX XXX XXX (2) Where by an order made under subsection (1), an election is set aside or an officer-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of officer-bearers of a society has not been held within the time specified in the rules of that society, he may call a meeting of the general body of such society for electing such office-bearer or office bearers, and such meeting shall be presided over and be conducted by the Registrar or by any office authorised 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 election with necessary modifications,"
A conspectus of the provisions contained in Section 3A(4) makes it abundantly clear that every application for renewal of the certificate of registration shall be accompanied by a list of members of the Managing body elected after the registration of the society or after the renewal of certificate of registration and those of Sction 4 indicates that once in every year, on or before the fourteenth ,day succeeding the day on which, according to the rules of the Society, the annual general meeting of the society is held, or, if the rules do not provide for aan annual general meeting, in the month of January, a list shall be filed with the (Registrar), of the names, addresses and occupations of the governors, (sic) committee of other governing body then entrusted with the management of the affairs of the society. It is evident that whether it is an application for renewal of certificate or registration under Section 3 A or it is a submission of the annual list of the managing body to the Registrar under Section 4 of the Act, a list of members of the managing body has also to be submitted. In case of an application for renewal of certificate of registration, the list of members of the managing body which came into office after the registration of the society or after the last renewal of certificate of registration has to be submitted while in the case of submission of the annual list, the list of members of the governing body etc. for the time being entrusted with the management of the affairs of the society has to be submitted under Section 4(1) of the Act. It is true that requirements of obtaining counter-signature of the old members as visualised by the proviso to Section 4(1) of the Act is not expressly comprehended by Section 3A(4) of the Act but such a requirement appears to be implicit in sub-section (4) of Section 3 A or the object of obtaining counter-signature of the old members under both the section is one and the same i.e. to see that the list submitted in genuine and the society of which certificate of registration is sought to be renewed or in respect of which the annual list is filed, is not a dead entity. The purpose of obtaining the counter-signature of the old members is thus to avoid forged and bogus applications for renewal of the certificate of registration being presented by unauthorised persons. The Asstt. Registrar in the present case, has not decided any such controversy or dispute as is comprehended by Section 25 of the Act. All that he has said in the impugned order is that the application for renewal of certificate of registration moved by the petitioner on 1-6-1992 was based on 'Farzi' proceedings whereas the one submitted by Sri Harihar Prasad Tripathi was in order. The impugned order passed by the Asstt. Registrar does not in my opinion, amount to usurpation of power nor does it amount to adjudication of any dispute in respect of election or continuance in office of any office bearer of the society. Out of the two applications, one moved by the petitioner and the other moved by respondent Harihar Prasad Tripathi, the Asstt. Registrar has found the latter one as genuine and in order and accordingly directed the renewal of the registration certificate of the society on the said application. Accordingly, I do not find any merit in the submissions made by Sri Yogesh Agarwa! that the order impugned in the writ petition is without jurisdiction and that it amounted to usurpation of power.
8. The submissions made by Sri Yogesh Agarwal have no merit also on the ground that the Asstt. Registrar while exercising the power of renewal of the certificate of registration conferred upon him by Section 3 A of the Act, could incidentally examine whether the list of the members of the managing body submitted along with application for renewal of the certificate or registration as required by sub-section (4) was genuine or not. Exercise of such incidental or ancillary power may, in a given case, be considered necessary for effectuating jurisdiction vested in the Asstt. Registrar under Section 3A of the Act. It cannot be said that the Asstt. Registrar while incidentally going into the question as to the genuineness of the list of members of the managing body submitted along with the application for renewal of the certificate of registration, has in the present case, actually gone into any dispute or controversy specifically visualised by Section 25 of the Act.
9. It is evident from Section 3A that renewal of the certificate of registration of a Society is within the exclusive jurisdiction/ domain of the Registrar which term excludes Asstt. Registrar Firms, Societies and Chits. The power to renew a certificate of registration being expressly and exclusively conferred upon the Registrar, the Registrar would be deemed to possess all incidental and ancillary powers as may be considered necessary for an effective exercise of the power under Section 3A of the Act. The doctrine of implied/ ancillary/incidental power is a well settled doctrine pertaining to construction of statutory powers as would be evident from maxim quoted below.
"Since Qua Res Ipsa Esse Non Potuit Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect."
Which has been explained in Boom's legal maxims, 10th Edition P. 312 as thus, "it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command : quando aliquid mandatur, man-datur et omne per quod pervenitur ad illud."
10. In this connection, the observations of Lord Black Burn in Murray v. Scott, (1894) 9 App Cas 519 at p. 546 may usefully be quoted; "it being a general rule that there is an impled authority to do all those things that are necessary for the protection of the property entrusted to a person or for fulfilling the duties which a person has to perform".
11. In Income-lax Officer v. M. K. Mohammed Kunhi, AIR 1969 SC 430, the Supreme Court has laid down the law on the point as under (Para 4).
"It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective ...... The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective."
12. In Grindlay's Bank Ltd. v. Central Government Industrial Tribunal, AIR 1981 SC 606, the Supreme Court has reiterated the principles of ancillary or incidental power in the following words (Para 6).
"But it is well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties."
13. Similarly, Bidi, Bidi, Leaves and Tobacco Merchants Association v. Bombay State, AIR 1962 SC 486, the observations made by the Supreme Court on the doctrine of implied powers may usefully be quoted as below (Para 20).
"The doctrine of implied powers can be legitimately invoked when it is found that a duty had been imposed or a power conferred on an authority by a statute and is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxilliary or incidental power is assumed to exist, in such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied."
14. The aforesaid proposition of law has been reiterated in Asstt. Collector Central Excise Calcutta v. National Tobacco Company of India, AIR 1972 SC 2563 and it has been statutorily recognised under Section 19A of the U.P. General Clauses Act, 1904 as inserted by Act 54 of 1955. The provisions may be quoted as below.
"19A Ancillary powers -- where by any Uttar Pradesh Act, a power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers shall be deemed to be given as are necessary to enable a person officer or functionary to do or enforce the doing of the Act or thing."
15. In the light of the above proposition of law, the order impugned in the writ petition cannot be said to be without jurisdiction.
16. It is evident from Section 25 of the Act that the Registrar or 1 / 4th of the members of the society-may refer any dispute in respect of the election or continuance in office of an office-bearer of the society to the Prescribed Authority for adjudication in a summary manner. The order impugned in the present petition does not, in my opinion, come in the way of making reference contemplated by Section 25 of the Act, in case any such dispute as is visualised by the section arises.
17. Sri Yogesh Agarwal, learned counsel appearing for the petitioner placed reliance upon decisions of this Court in Arvind Shukla v. Commissioner Kanpur, 1992 (19) ALR 143 U.P., Rajya Vidyut Parishad Anusuchit Jati and Anusuchit Jan Jati Karmchari Kalyan Samiti v. Asstt. Registrar of Firms, Societies and Chits Regional Office, Varanasi, 1992 (19) ALR 173, and Muslim Welfare Society Machhlishahr v. Asstt. Registrar of Firms, Societies and Chits Varanasi, (1991) 2, UPLBEC, 1046: (AIR 1992 All 43) in support of his contention that the Asstt. Registrar had no jurisdiction in the matter and that he ought to have stayed the proceedings as to renewal of the certificate of registration and referred the dispute to the Prescribed Authority.
18. The decisions aforesaid have no application to the facts of the present case. Arvind Shukla's case (1992 (19) ALR 143) (supra) was a case under Section 12D(C) of the Act and it has been held that the section only confers powers for cancellation in the circumstances given therein and that-it does not cofner any power for recognising any body either as Manager or for purposes of renewing the registration of the society with a particular name. In U. P. Rajya Vidyut Parishad's case (1992 (19) ALR 173) (supra) it was held that the Asstt. Registrar, while referring the dispute to the Sub-Divisional Officer can pass an order keeping in abeyance the order passed by him on the application for renewal of the certificate of registration and in the case of Muslim Welfare Society (supra), the dispute had not arisen in the context of the submissions of the annual list of the managing body nor even in the context of Section 3 A of the Act. Rather, it was as to continuance in office of the offce bearers of the society on the basis of a meeting held on 3rd of August 1989, and it was in this context that the Court held as under -
"The parties have brought the dispute claiming existence of two rival executive bodies of the society and in this view of the matter, in my opinion, proviso to Section 4 of the Act does not provide any procedure for deciding such dispute by the authorities contemplated under Section 4(1) of the Act, whereas Section 25(1) of the Act specifically deals with such contingencies providing for effective adjudication by the prescribed authority. The provisions, of Section 25(1) which are exclusively and specially provided for this purpose cannot be nullified by the provisions of Section 4(1) proviso of the Act.the scope of which is very limited in deciding the objections of the dispute in which old office bearers do not countersign the list."
It is thus evident that the authorities relied upon by Sri Yogesh Agarwal are not applicable to the facts of the present case.
19. Sri Yogesh Agarwal then urged that the impugned order has been passed in breach of the principles of natural justice. He has placed reliance upon a decision of the Supreme Court in S. L. Kapoor v. Jagmohan, AIR 1981 SC 136. There is no denying the fact that an order having civil consequences, if passed in breach of the principles of natural justice, is void but in the present case, the order impugned was not passed in breach of the principles of natural justice, for it is evident from the impugned order itself that the petitioner was afforded opportunity by letter dated 22-6-1992 whereby he was required to obtain the signatures of the (sic) office-bearers and again by another notice, Which was issued to him after the application for renewal of the certifcate of registration, was filed by Sri Harihar Prasad Tripathi on 23-(sic)-1992 and whereby, the petitioner was called upon to adduce his evidence in support of his case.
20. In this view of the matter, I do not find any merit in the submissions advanced by the learned counsel that the order impugned was passed in breach of the principles of natural justice.
21. The learned counsel for the petitioner then urged that the impugned order has been passed on irrelevant consideration in that, it is urged by the learned counsel, the requirement of obtaining counter-signatures of the old members/office bearers was not a condition precedent for purposes of Section 3A of the Act. I do not find any merit in this submission as well. As discussed above, the requirement of obtaining counter-singatures of the old office-bearers as visualised by the proviso to Section 4(1) of the Act is of course not comprehended expressly by Section 3A but such a course if adopted by the Asstt. Registrar for purposes of ascertaining the genuineness or otherwise of the application for renewal of the certificate of registration under Section 3A of the Act. cannot be said to be irrelevant for in my opinion, such a course is a valid and lawful means to ascertain as io whether the application for renewal of the certificate of registration has been brought forth by the proper authority or person. Mere fact that the petitioner was called upon lo obtain counter-signatures of the old officebearers by means of notice dated 22-6-1992, though such requirement was not expressly required by Section 3A (4) of the Act would not vitiate the order nor could it be said that by taking into consideration the fact that the list submitted by the petitioner, was not counter-signed by the officer-bearers as were entrusted with the management of the affairs of the soceity at the time of such renewal of certificate of registration, the Asstt. Registrar has acted on irrelevant consideration as urged by the learned counsel appearing for the petitioner.
22. Before parting with the case, it may be observed that the petitioner has not assailed the order of the Asstt. Registrar, in so far as it directs the renewal of certificate of registration of the society under Section 3A on the application filed by Sri Harihar Prasad, Tripathi. At the time of argument, the learned Counsel for the petitioner conceded that he was not aggrieved against the renewal of the certificate of registration. The prayer is only for quashing the order in so far a it has the effect of cancelling the alleged election of new officer bearers of the society. Admittedly, the bye-laws of the society do not comprehend any election and the Asstt. Registrar too, has not cancelled any election by means of the impugned order. The bye-laws of the society visualise nomination and not election. The order impugned in the writ petition cannot, therefore, be said to be an order adjudicating upon any dispute regarding election. It may also be noticed that in paragraph 1 of the writ petition, the petitioner claims himself to be 'Mahamantri' of a society known as 'Maharsh Mukti Vidyamandir Gram Ibrahimpur Post Lalgopal Ganj, District Allahabad, whereas the society whose certificate of registration has been ordered to be renewed by the impugned order is known as Achary (sic) Kripa Shanker Ramanugreh Tripathi Sansthan. However, but an application was moved on 9-2-1993 for amendment of the writ petition by substituting the expression "Acharya Kripa Shanker Ramanugreh Tripathi Sansthan, Gram Ibrahimpur Post Lalgopal Ganj District Allahabad," in place of the expression 'Maharsh Mukiti Vidyamandir Gram Ibrahimpur Post Lalgopal Ganj District Allahabad'. In this view of the matter, it cannot be said that the writ petition is misconceived and liable to be dismissed merely because of the above mentioned infirmity.
23. No other point was urged.
24. In view of the above discussions and conclusion the petition fails and is dismissed in limine.
25. Petition dismissed.