Allahabad High Court
Society,Gramin Siksha Prasar ... vs State Of U.P. Thru. Prin. Secy. ... on 9 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- WRIT - C No. - 3526 of 2022 Petitioner :- Society,Gramin Siksha Prasar Samiti,J.J.D. Baba Inter College,Thru.Manager Mamta Tripathi And Anr. Respondent :- State Of U.P. Thru. Prin. Secy. Secondary Education, Lko. And 3 Others Counsel for Petitioner :- Jai Kumar Counsel for Respondent :- C.S.C.,Nagendra Bahadur Singh Hon'ble Subhash Vidyarthi,J.
1. Heard Sri H.G.S. Parihar, the learned Senior Advocate, assisted by Sri Jai Kumar, Advocate, the learned counsel for the petitioners, the learned Standing Counsel for the respondent nos. 1, 2 and 3 and Sri Virendra Mishra, the learned counsel appearing on behalf of the respondent no. 4.
2. The description of petitioners in the instant writ petition is as follows:-
"1. Society, Gramin Siksha Prasar Samiti, Jagdish Janta Devraha Baba Inter College, Post- Bihar, District- Pratapgarh, through its Manager Ms. Mamta Tripathi.
2. Mamta Tripathi, aged about 45 years, wife of Sri Rajesh Tripathi, Manager of the Committee of Management, Jagdish Janta Devraha Baba, Inter College, Bihar, Pratapgarh."
3. The petitioners have filed the present writ petition challenging the validity of an order dated 30.04.2022 passed by the Assistant Registrar, Firms, Societies and Chits, Prayagraj, declaring the Managing Committee of Gramin Shiksha Prasar Samiti (hereinafter referred to as the 'Society') as having become time barred under Section 25 (2) of the Societies Registration Act, 1860 and the order has been passed to conduct the elections of the Managing Committee of the Society. The petitioners have also challenged an order dated 19.05.2022 passed by the Assistant Registrar, Firms Societies and Chits, Prayagraj declaring the list of the members of the society from amongst whom the Managing Committee of the Society will be elected and declaring the election schedule, as per which all the proceedings starting from filing of the nominations upto declaration of result of the elections have to be conducted on 10.06.2022.
4. Sri Virendra Mishra, the learned counsel for the opposite party no. 4 has raised a preliminary objection that the description of the petitioner no. 1 "Society, Gramin Siksha Prasar Samiti, Jagdish Janta Devraha Baba Inter College, Post- Bihar, District- Pratapgarh, through its Manager Ms. Mamta Tripathi" is defective, as ''Gramin Shikhsa Prasar Samiti' and 'Jagdish Janta Devraha Baba Inter College' are two distinct entities and they cannot join to file a writ petition as one body. He has submitted that the description of the petitioner no. 1 being defective, the writ petition cannot be entertained on behalf of the petitioner no. 1.
5. He has also submitted that the petitioner no. 2, Smt. Mamta Tripathi, who has claimed herself to be the Manager of the Committee of Management, Jagdish Janta Devraha Baba Inter College whereas she is not the Manager of the College and she has no right to assail the orders dated 30.4.2022 and 19.05.2022, which have been passed regarding elections of the Society and not regarding the Committee of the Management of the college. Sri Virendra Mishra has further submitted that petitioner no. 2 is not even a member of the General Body of the Society and her name does not find place in the list of valid members of the Society annexed with the order dated 30.04.2022 passed by the Assistant Registrar.
6. Sri Mishra has raised a further objection that the election schedule has also been declared by means of the impugned order dated 19.05.2022 and after declaration of the elections of the Society, a writ petition under Article 226 of the Constitution of India is not maintainable. In this regard, he has placed reliance on the judgments of this Court in Basant Prasad Srivastava And Another vs. State of U.P. And Others (1993) 2 UPLBEC 1333, Fahim Ahmad And Others vs. State of U.P. And Others 2008(26) LCD 1109 and Gulab Dhar Pandey vs. State of U.P. And Others (2009) 2 UPLBEC 1562.
7. Replying to the aforesaid preliminary objection against maintainability of writ petition after commencement of elections, Sri H.G.S. Parihar, the learned Senior Advocate has submitted that there is no bar against a writ petition being entertained after commencement of the election process in case the order has been passed without jurisdiction. He has placed reliance upon a judgment dated 23.05.2019 passed by a Co-ordinate Bench of this Court in Special Appeal No. 203 of 2019 (Shri Kranti Kumar Singh And Another vs. Sardar Patel Shikshan Samiti and Others). After recording the submissions of the parties, this Court proceeded to decide the Special Appeal as follows:-
"We have heard learned counsel for the parties and perused the record. Learned counsel for the appellants could not dispute the fact that since 09.09.2005, many orders have been passed by the Deputy Registrar and few of the orders have been contested before this Court in various writ petitions. Certain orders relating to the changes in by-laws of the Society which has already been approved by the Deputy Registrar and certain rights in terms of the earlier order passed by this Court and the order of Deputy Registrar, has crystallized the rights of the respective parties and thus, merely upon the dismissal of the Special Appeal No.927 of 2005 it does not appeal to reason that all the orders ipso facto loose their relevance and significance. In light of the controversy between the parties and facts and circumstances, it was incumbent upon the Deputy Registrar to have considered the effect of the said different orders and was required to hear the parties concerned before passing the orders. We do not find any reason to interfere in the order passed by the learned Single Judge. "
8. Having gone through the aforesaid judgment dated 23.05.2019, I do not find any ratio having been laid down in the said judgment that a writ petition under Article 226 of the Constitution of India can be entertained even after commencement of the election process and, therefore, in my considered opinion, the aforesaid judgment is of no help to the learned counsel for the petitioners.
9. Sri H.G.S. Parihar, the learned Senior Advocate has submitted that in the instant case, the orders under challenge have been passed without jurisdiction and it is settled law that if an order has been passed without jurisdiction, this Court will not refrain from exercising its jurisdiction. I proceed to examine the rival contentions so as to examine as to whether the impugned orders have been passed without jurisdiction.
10. The petitioners have pleaded that the elections of the Society have been continuously held from time to time and an election of the Society was held on 13.12.2009, in pursuance whereof the proceedings were submitted before the Registrar as well as District Inspector of Schools.
11. Upon examination of the record, I find that Bye-law-5 of the registered bye-laws of the Society, a copy whereof has been annexed as Annexure No. 4 to the writ petition, provides as follows:-
"5. Bodies of the Society-There will be two types of bodies:-
(I) General Body-these Body will consist of 2 kinds of members-
(a) Ordinary Members-Ordinary Member will be a person who will pay a sum of Rs. 51 or more in the shape of cash or kind to society. Term of such members will be three years.
(b) Life Member-Life Member will be a person who will pay a sum of Rs. 500/- or more in cash or kind to the Society. (II) Managing Committee-Managing Committee will consist of a total of 18 members who will be elected in the following manner:-
(a) 15 members will be elected from amongst the members of the General Body of the institution after every three years and the term of office of these members will be of three years
(b) The Principal will be an ex-officio member of the Managing Committee.
(c) Two teachers who will be selected each year on the basis of seniority in service, will be ex-officio members of the Managing Committee by rotation. This will be done as per the provisions contained in Section 16 (A) (1) of the Act and Rule 1. (3) Office bearers of the Managing Committee:-
(a) Chairman
(b) Vice Chairman-2
(c) Manager
(d) Deputy Manager
(e) Treasurer and
(f) Auditor Note: The aforesaid office bearers will be elected by the members of the Managing Committee from amongst themselves."
12. In all the elections held after 31.12.2009, a Managing Committee consisting of 12 persons only has been elected and none of the Committee consist of 18 persons of which 15 were elected, rest were ex-officio members including the President and two senior most teachers of the institution. Therefore, as per the document placed on record by the petitioners themselves, it appears that none of the elections after 13.12.2009 have been held in accordance with the provisions contained in bye-law-5 of the bye-laws of the Society.
13. The election proceedings, a copy whereof annexed as annexure no. 6 to the writ petition indicates that a Managing Committee consisting of 12 members was elected and the General Body resolved that the elected committee will look after the Management of the Jagdish Janta Devraha Baba Inter College, which is being run by the Society.
14. The petitioners have stated that thereafter elections of the Society were held on 09.12.2012, 20.12.2015, 27.12.2018 and lastly on 26.12.2021. He has submitted that the followings persons have been elected in the last elections of the society held on 26.12.2021:-
1. Sri Om Prakash Singh, President
2. Sri Nagendra Bahadur Singh, Vice President
3. Smt. Mamta Tripathi, Manager
4. Sri Brij Kishore Tripathi, Deputy Manager
5. Sri Amarnath Mishra, Treasurer
6. Sri Kamta Prasad Diwedi, Accountant
7. Sri Devanand Tripathi, Member
8. Sri Kamlesh Kumar, Member
9. Sri Vinod Kumar Mishra, Member
10. Sri Rasraj Pandey, Member
11. Sri Indra Narayan Tripathi, Member
12. Sri Ghanshyam Tiwari, Member
15. The petitioners have further stated that an information of the elections held on 26.12.2021 was sent to the Assistant Registrar, Firms Societies and Chits on 29.01.2022.
16. However, the record reveals that on 03.01.2022, the Assistant Registrar, Firms Societies and Chits, Prayagraj had sent a letter, a copy whereof has been filed as Annexure no. 26 to the writ petition, to the Society stating that Sri Rakesh Kumar Tripathi (respondent no. 4) and eight other persons named in the letter have given a complaint on 31.12.2021 stating that as per the registered bye-laws of the Society, the term of the office bearers and members of the Committee of Management is of three years and the Committee consists of a Chairman, Vice Chairman, Manager, Deputy Manager, Treasurer, Auditor and six other members. The Principal and two Teachers will also be the members of the Committee, thus, the Managing Committee will consist of a total of 15 persons.
17. The complaint stated that the elections of the Managing Committee of the Society have not been held since the year 2007. The alleged elections of the Managing Committee held on 13.12.2009 and 20.12.2015 violate the by-laws 5(2), 5(3) and 12(2) and the proceedings held on 01.04.2016, by which eleven members have been inducted in the Society is wholly fictitious because the Society has become time barred under Section 25 (2) of the Societies Registration Act, 1860 for not holding elections of the Managing Committee of the Society and the members of the time barred Managing Committee of the Society have no authority to conduct elections of the Society.
18. The complainants requested that the valid members of the Society be ascertained and elections of the Society be conducted under the provisions of Section 25 (2) of the Societies Registration Act, 1860. By means of the said letter, the Assistant Registrar directed the Manager of the Society to appear before him on 18.01.2022 and produce his comments along with the evidence and to produce the original documents of the Society like minute book, register of notices, membership register, membership receipt book, cash book, bank passbook etc. so that the complaint made by the opposite party no. 4 may be disposed of. When the Manager did not appear on 18.01.2022 in response of the aforesaid notice dated 03.01.2022, on 04.02.2022, the Assistant Registrar sent another letter to the Manager giving him another opportunity to appear and produce relevant records on 18.02.2022. On 18.02.2022, Sri Brij Kishore Tripathi gives a letter to the Assistant Registrar stating that presently Smt. Mamta Tripathi (petitioner no. 2) is the Manager of the Society / College and notice be issued to her.
19. On 14.03.2022, the Assistant Registrar Firm Societies And Chits, Prayagraj sent a letter to the petitioner no. 2 asking her to appear and place her version and produce the relevant records on 25.03.2022. On 31.03.2022, the petitioner no. 2 gives an application in the Office of the Assistant Registrar stating that the notice dated 14.03.2022 was delivered to her on 26.03.2022 and, therefore, she could not appear on the date fixed on 25.03.2022.
20. On 31.03.2022, the Assistant Registrar sent another letter to the petitioner No. 2 giving her a further opportunity to appear either personally or through authorized representative to place her version and produce the relevant document on 06.04.2022. On 06.04.2022, the petitioner No. 2 sent a letter of the same date stating that repair work is being carried out on Ganga Bridge at Phaphamau and also that she is not well, and, therefore, she could not appear before the Assistant Register. It is relevant to note that this letter was sent by hand and was delivered personally in the office of the Assistant Registrar.
21. On 07.04.2022, the Assistant Registrar sent another letter to the petitioner No. 2 stating that on 06.04.2022 her representative Shri Ashok Tripathi had given a letter expressing the inability of the petitioner No. 2 to appear whereas the opposite party No. 4 had appeared in person. The said letter directed the parties to submit the relevant documents by 20.04.2022 otherwise the matter will be disposed off on the basis of the documents available on record.
22. Ultimately, on 30.04.2022 the Assistant Registrar, Firms Societies and Chit Fund, Prayagraj passed an order holding that bye-law-5 of the Registered Bye-laws of the Societies provides that the Managing Committee of the Society shall consist of 15 members out of which 12 members will be elected from amongst the general body of the Society for a period of three years; the President will be ex-offficio member of the Managing Committee and two teachers on the basis of seniority of service will be ex-officio members each year by rotation. The Assistant Registrar further held that a perusal of the record indicates that the elections of the Managing Committee of the Society was held on 13.12.2009. Thereafter, an election is said to have been held on 09.12.2012, the proceedings whereof indicate that it was not held as per bye-laws of the Registered Society, rather it has been held as per scheme of administration of the College and this election was held in presence of a Supervisor Nushrat Ali appointed by the District Inspector of Schools. Thereafter, the election said to be on 20.11.2015 was also held as per the scheme of the administration of the College in presence of a Supervisor appointed by the District Inspector of Schools.
23. At the time of renewal of the Society Shri Brij Kishore Tripathi had submitted the election proceedings dated 07.10.2020 and Resolution No. 2 of the proceeding states that term of the Managing Committee is 5 years which is going to expire whereas as per bye-law 5 (2) (a) of the Society, the term of the Managing Committee is 3 years and not 5 years. Therefore, none of the aforesaid elections have been held as per the bye-law 5 (2) (a) and 7 of the registered bye-laws of the Society, all the elections held after 13.12.2009 have been held as per the scheme of administration of the College and no election has been held after 13.12.2009 as per bye-laws of the Society. The Assistant Registrar came to a conclusion that the Managing Committee of the Society has become time barred under Section 25 (2) of the Societies Registration Act, 1860 for the reason that no elections of the Managing Committee of the Society have been held since 13.12.2009 and the office bearers and members of the time barred Managing Committee have no right to take any policy decision to induct any new members in the Society. Elections of a time barred Society can only be held by the Registrar, Deputy Registrar or Assistant Registrar, Firms, Societies and Chit Fund, Prayagraj under Section 5 (2) of the Societies Registration Act, 1860.
24. Shri H.G.S. Parihar has assailed the aforesaid order on the grounds that order has been passed without affording a proper opportunity of hearing to the petitioners and that the Assistant Registrar had no jurisdiction to pass an order as the election of the Society had been regularly held and any dispute against the elected Managing Committee of the Society can only be raised before the Prescribed Authority under Section 25 of Societies Registration Act.
25. I have gone through the record wherein all the proceedings of the elections alleged to have been conducted to constitute Managing Committee of the Societies have been elected and in all the aforesaid proceedings, Managing Committee consisting of only 12 persons has been constituted. The elections have been conducted in presence of Supervisor appointed by the District Inspector of Schools. The proceedings available on record indicate that none of the elections held after 13.12.2009 have been conducted in accordance with the registered bye-laws of the Society, a copy whereof has been filed as Annexure No. 4 to the writ petition.
26. Moreover, the proceedings of the election last held on 07.10.2020 states that the Committee has been formed for a period of 5 years whereas as per bye-law-5 the aforesaid bye-law-5 of the Society, the term of the Managing Committee of the Society is only three years.
27. Keeping in view the aforesaid facts, I find that the reasons recorded by the Assistant Registrar in the order dated 30.04.2022 are based on proper appreciation of documents available on record and the findings of the Assistant Registrar are not without any substance so as to warrant interference under Article 226 of the Constitution of India.
28. The submission of learned counsel for the petitioner that the aforesaid order has been passed without jurisdiction as after the elections of the Society had been held on 07.10.2020, the same could only be challenged before the Prescribed Authority under Section 25, appears to be without force as the record reveals that no elections of the Society have been held since 13.12.2009 and there was no occasion for any person to approach the Prescribed Authority under Section 25 to challenge any election proceedings.
29. The submission of Shri Parihar that the impugned order has been passed without affording a proper opportunity of hearing to the petitioner No. 2 is also without any force. I have already noted in the preceding paragraphs that numerous letter dated 14.03.2022, 31.03.2022 and 07.04.2022 have been sent to the petitioner No. 2 giving her repeated opportunities to present her case but she kept on avoiding appearance and production of record before the Assistant Registrar. Therefore, the order cannot be assailed for having been passed in violation of principles of natural justice.
30. Keeping in view the aforesaid discussions made in the preceding paragraphs, I find no force in the submissions made by learned counsel for the petitioner in support of the writ petition, the writ petition lacks merit and is liable to be dismissed.
31. Accordingly, the writ petition is dismissed. However, there will no order as to costs.
Order Date :- 9.6.2022 Aditya/Jaswant