Allahabad High Court
The C/M Samaj Sewak Samiti Shiv Mangal & 8 ... vs State Of U.P. & 2 Others on 10 January, 2018
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 33 Case :- WRIT - C No. - 23386 of 2017 Petitioner :- The C/M Samaj Sewak Samiti Shiv Mangal & 8 Others Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Ashish Kumar Ojha, R.K. Ojha Sr. Advocate Counsel for Respondent :- C.S.C., Ashutosh Mani Tripathi, Daya Shanker Mani Tripathi, Hritudhwaj Pratap Sahi, Vijay Kumar Singh Hon'ble Manoj Misra, J.
Heard Sri R.K. Ojha, learned Senior Counsel, assisted by Sri Ashish Kumar Ojha, for the petitioners; learned Standing Counsel for the respondents 1 and 2; Sri G.K. Singh, learned Senior Counsel, assisted by Sri Ashutosh Mani Tripathi, for the respondent no.3.
The present petition assails an order dated 19.04.2017 passed by the Assistant Registrar, Firms, Societies and Chits, Allahabad (in short Assistant Registrar) by which objection taken by the petitioners in respect of registration of certain amendments in the aims and objects as well as the bye-laws of the Society has been rejected.
To better understand the controversy, it would be apposite to take notice of few facts.
There is a registered Society by the name of Samaj Sevak Samiti Shiv Mangal Nagar, Manethu, Belwa, Allahabad (in short the Society). The last undisputed election of the office bearers of the Society was held on 25.11.2012 in which one Radhey Shyam Mishra was elected President; Sita Ram Shukla (petitioner no.2) was elected Manager; and Keshav Dev Tripathi (respondent no.3) was elected Deputy Manager. On 12.07.2013, purportedly, under the signature of petitioner no.2 as well as three other members of the Committee of Management, four resolutions were submitted for being recorded in the register of Societies maintained in the office of Assistant Registrar. These four resolutions were: (i) resolution dated 13.01.2013 of Committee of Management of the Society seeking amendment in the aims and objects of the Society; (ii) resolution dated 27.01.2013 of the General Body of the Society accepting the proposed amendment in the aims and objects of the Society; (iii) resolution dated 09.06.2013 of Committee of Management of the Society effecting change in the bye-laws of the Society relating to membership fee as well as procedure for induction of members, etc; and (iv) resolution dated 16.06.2013 of General Body of the Society ratifying the aforesaid resolutions.
The Assistant Registrar registered the said resolutions on 20.12.2013.
The petitioner no.2 is the Manager of the Committee of Management of the Society; the petitioner no.3 is its Vice-President whereas petitioners 4, 5 and 6 are members of the Committee of Management of the Society; the remaining three petitioners, namely, petitioner no.7, 8 and 9 are members of the General Body of the Society.
According to the petitioners the aforesaid resolutions were bogus and when it came to their knowledge that such resolutions had been tendered for registration, on 03.08.2014 a meeting of the General Body of the Society was held and, by a resolution, the resolutions dated 13.01.2013, 27.01.2013, 09.06.2013 and 16.06.2013 were declared bogus and invalid. Thereafter, a detailed objection was taken before the Assistant Registrar to cancel the registration of those resolutions.
In the objection, the petitioners took a plea that resolutions dated 13.01.2013, 27.01.2013, 09.06.2013 and 16.06.2013 were never passed and that the letter forwarding those alleged resolutions carried forged signatures. In support of the objection, affidavits of as many as six out of twelve members of the Committee of Management of the Society, and nine out of nineteen members of the General Body of the Society including members of Committee of Management were filed denying their participation in the meeting as well as holding of meeting relating to those resolutions.
The Assistant Registrar by his order dated 26.10.2015 allowed the objection and canceled the registration order dated 20.12.2013. Against the order dated 26.10.2015, Writ C No.67032 of 2015 was filed by the third respondent. Vide order dated 21.03.2017, the said petition was disposed off by directing that the writ petitioner and the contesting respondent would appear on a particular date before the Assistant Registrar and shall submit their documents and thereafter fresh order would be passed, without being influenced by the previous order, and the order dated 26.10.2015 would abide the order so passed.
Pursuant to the order passed by this court the matter was re-opened.
The third respondent contested the claim of the petitioners by claiming that the resolutions were duly passed and submitted for registration under signature of persons authorized and therefore there was no reason to upset their registration. In support of his case, the third respondent submitted affidavits of four members including the President of the Society.
The Assistant Registrar by the impugned order dated 19.04.2017 rejected the objection of the petitioners after recording a finding that the application seeking registration of the disputed resolutions was submitted under the signature of the second petitioner and, as the President of Committee of Management had supported passing of resolutions as also filing of resolutions for registration, the registration was lawfully made and there was no reason to cancel the same. While holding as above, the Assistant Registrar though noticed that original of the disputed resolutions was not produced but brushed aside that lapse by observing that the second petitioner (Sita Ram Shukla) was custodian of records, being manager of the society, therefore he must have withheld the original minutes register to show different set of resolutions recorded on a separate minutes register prepared deliberately for the purpose. The aforesaid conclusion was arrived at by drawing adverse inference on account of non production of any register containing minutes of any meeting prior to date 13.01.2013.
Assailing the impugned order, Sri R.K. Ojha, who has appeared on behalf of the petitioners, submitted that the Committee of Management of the Society comprised of 12 members. To amend the bye-laws as well as the aims and objects of the Society, the resolution of the Committee of Management was required to be passed with a strength of not less than two-third members. It has been submitted that two-third of twelve members would mean eight members and since six out of twelve members had denied holding of meeting in respect of the disputed resolutions, there was no justification for the Assistant Registrar to accept the resolutions, particularly, when original of the resolutions was not produced to demonstrate that resolution was passed and, that too, with requisite strength of members required to complete quorum for a valid meeting.
Sri Ojha also submitted that there was no occasion to draw adverse inference on non production of register of any date prior to 13.01.2013 because the resolutions under challenge were of the date 13.01.2013 and after.
Sri Ojha further submitted that whenever a dispute arises in respect of validity of a resolution effecting amendment in the aims and objects as well as bye-laws of a society, the minimum that is required from a Registrar is to apply his mind whether the resolution has been passed and, if passed, whether it is in accordance with the provisions of the Act as well as the bye-laws of the Society. It has been submitted that under Section 4-A of the Societies Registration Act, 1860 (in short the Act, 1860) although a change in Rules of the Society is to be intimated under signature of three members of the governing body of the Society but according to Rule 5 of the U.P. Societies Registration Rules, 1976 (in short Rules, 1976) whenever a document is filed before the Registrar it has to be initialed by all signatories to the document. It has been submitted that the resolutions in question were admittedly signed by only four persons and if it is taken that they, in all, were signatories to the document, then, since only four signatories were there, the quorum for the meeting was not complete, inasmuch as two-third of a twelve members committee would be eight. Hence, according to him, the resolutions were in contravention of the provisions of the bye-laws of the Society. It has been submitted that once an objection was taken by the office bearers as well as members of the Society that no such resolutions were passed, the Assistant Registrar was required to address the objection by ascertaining whether the disputed resolutions were passed in accordance with the provisions of the bye-laws of the Society. It has been submitted that the Assistant Registrar though rejected the objection but has not considered whether the disputed resolutions were in accordance with the bye-laws of the Society.
In support of his submissions, Sri Ojha placed reliance on two Division Bench decisions of this Court, namely, AIR 1990 Allahabad Page 110: Shiksha Samiti Degree College, Garua Maksudpur and others Vs. Registrar, Firms, Societies and Chits, U.P. Lucknow; and 2011 (4) ADJ 887: Allahabad High School Society, Allahabad and others Vs. State of U.P. and others.
In the aforesaid two decisions, this Court had observed that if amendments are made in the bye-laws of the Society, the Registrar at the time of recording the amendments in the register is entitled not only to find as to whether the meeting, which made the amendment, had taken place or not, but also, in case controversy arises, whether the amendment has been as per the provisions of the Act and the Rules. In the case of Allahabad High School Society (Supra) it has been held that though the Registrar would not have power to adjudicate on the merits of the amendment but he has to examine whether the meeting of the Society had been validly held in accordance with the provisions of the Act and the Rules of the Society. The said decision goes on to hold that the Registrar at that stage has to ascertain whether: (a) the meeting was validly convened; (b) due notice was given; (c) quorum was complete; and (d) it was passed by the required majority.
Relying on the aforesaid decisions of this Court, Sri Ojha has submitted that the Assistant Registrar while passing the impugned order has failed to examine whether the resolutions in question were passed in a meeting lawfully convened and with requisite quorum. It is thus his case that the order passed by the Assistant Registrar needs to be set aside for fresh adjudication after taking into account all relevant parameters in the light of the law laid down by this Court in the decisions noticed above.
In response to the above submissions, Sri G.K. Singh, who appeared for the third respondent, submitted that no specific objection was taken by the petitioners in respect of the resolutions being invalid for want of quorum for the meeting. It has been submitted that the objection taken by the petitioners was only to the effect that the resolutions were forged and were submitted under forged signature, therefore, once the Assistant Registrar came to a conclusion that the resolutions were submitted under the signature of the second petitioner (Sita Ram Shukla), there was no further inquiry necessary. It has also been submitted that since the register containing minutes of meetings prior to 13.01.2013 was not produced, the Assistant Registrar was well within his jurisdiction to draw adverse inference against the petitioners. It has been submitted that even otherwise, the burden was on the petitioners to demonstrate that the registration was invalid. And since it was found that the petitioner no.2 had submitted the resolutions for registration along with three other members, the Assistant Registrar was justified in rejecting the objection.
Sri G.K. Singh further submitted that as far as the provisions of the Act, 1860 are concerned, they do not require production of original of the document submitted for registration. Only a copy thereof need be submitted as would be clear from a plain reading of Section 4-A of the Act, 1860. It has been submitted that Section 4-A of the Act, 1860 requires submission of a copy of change made in rules of the society and intimation thereof is to be certified by not less than three members of the governing body of the Society. It has been submitted by him that since more than three members have certified the change in Rules of the Society and have tendered the same for registration, and the President of the Society had certified holding of meeting in which the disputed resolutions were passed, the registration of the change cannot be faulted and merely because copy of the resolution did not bear initials of all signatories to the resolution, registration of the same would not be illegal. He further submitted that Section 4-A of the Act, 1860 does not provide that registration of any change shall be made as per the procedure prescribed by the Societies Registration Rules therefore Rule 5 of the Rules, 1976, which require that copy of the document filed must be initialed by its signatories, has to be treated as directory and not mandatory. It has been submitted that since the Assistant Registrar has come to a conclusion that the resolutions were submitted under signature of requisite number of members of the governing body of the Society, as required by Section 4-A of the Act, 1860, no interference is called for with the order impugned and in case the petitioners have any grievance, they may institute a suit for declaration.
I have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record.
The issue that requires consideration is as to how objection taken to veracity and validity of a resolution bringing about an alteration/ amendment in the Rules (bye-laws) of a Society is to be dealt with by the Registrar/ Assistant Registrar, when the same is submitted for registration or has been registered but a challenge has been laid to its veracity and validity. The other issue which requires consideration is whether, while passing the impugned order, the Assistant Registrar has dealt with the objection in a legally correct manner.
Before dealing with the aforesaid issues it would be useful to examine the relevant provisions of the Act, 1860 and the Rules made thereunder. Sections 2 and 4-A of the Act disclose as to how the rules and regulations of a Society, including changes therein, are to be submitted/ intimated. Section 2 provides that a copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, has to be filed with the memorandum of association. Section 4-A of the Act, as applicable in State of U.P., provides that a copy of every change made in the rules of the society, certified by not less than three of the members of the governing body, shall be sent to the Registrar within thirty days of the change. Section 12 of the Act, 1860 enables a society to alter, extend or abridge its purpose. It provides as follows:
"12. Societies enabled to alter, extend, or abridge their purposes.--Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose to or for other purposes within the meaning of this Act, or to amalgamate such society either wholly or partially with any other society, such governing body may submit the proposition to the members of the society in a written or printed report, and may convene a special meeting for the consideration thereof according to the regulations of the society;
but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting."
The Rules, 1976 have been notified by the State Government under Section 33 of the Act, 1860. Rule 5 prescribes procedure for filing of documents. It provides that every document required to be filed under the provisions of the Act or the Rules shall be sent to the Registrar personally or shall be sent to him by registered post. Sub rule (2) of Rule 5 provides that the document to be filed shall be neatly typed, etc and shall be initialled by the signatories to the document and that every cutting in the document shall be initialled by one of the signatories. Rule 17 of the Rules provide that the documents received from the society under the provisions of the Act, 1860 or the Rules shall be filed along with the original papers, if any, of that society and necessary entries shall be made in the Register in Form I. Sections 22 and 24 of the Act, 1860 confer powers on the Registrar to call for information and to inspect the affairs of the Society.
A bare reading of Section 4-A of the Act, 1860 would reveal that only a copy of the amendment is required to be submitted for registration and it need not be signed by all such persons who had been signatory to that document though it has to be submitted under signature of not less than three members of the governing body of the society. Though Rule 5 suggests that the document filed has to be initialled by all its signatories but such requirement of the Rule would have to be considered directory because otherwise it would be in direct conflict with Section 4-A of the Act, 1860 which specifically provide that a copy has to be submitted under signature of not less than three members of the governing body of the Society. Accordingly if a copy of change made in rules of the society is submitted under signature of not less than three members of the governing body of a society it cannot be discarded simply because it has not been signed by all the persons who were signatory to that document.
Now, what needs to be examined is the nature of enquiry which a Registrar must undertake when an objection is taken to the amendment/change in Rules of the Society submitted for filing/registration.
Before dealing with the said aspect it would be apposite to understand the object of filing/registration of the bye-laws of the society.
The main purpose of registration of the bye-laws (Rules of a Society), including amendments made therein, is to ensure that Rules of the Society are in public domain. When Rules of a Society including list of its members and office bearers are in public domain, the parties that interact with that society are in a position to ascertain whether they are interacting with the authorized representatives of the society as also whether the action of the representatives are authorized by, and referable to, the rules of the society. Under the circumstances, registration of the rules and changes made therein assume importance. Therefore, registration is not to be done mechanically but with due application of mind, particularly, when challenge is laid to it. For such exercise, power has been conferred on the Registrar to call for information.
Thus, before a resolution comes in public domain, by way of registration, its validity, particularly when challenged, has to be tested on the basis of the provisions of the Act, 1860 and the Rules of the Society. When an objection is taken in respect of passing of a resolution as well as its validity, not only passing of the resolution has to be factually verified but its validity has also to be tested in the context of the provisions of the Act, 1860 as well as Rules (Bye-laws) of the Society. It is for this reason that the two Division Benches of this Court in the case of Shiksha Samiti Degree College (Supra) and Allahabad High School Society, Allahabad (Supra) have taken a view that though the merit of an amendment is not a concern of the Registrar but whether the resolution has been passed in a meeting validly convened, with requisite quorum, is a matter which requires consideration before registration. It may be observed that quorum for a meeting is ordinarily provided by Rules of a Society (Bye-laws) but in special cases, such as those contemplated by Section 12 of the Act, 1860, the Act, 1860 itself provides for the procedure. Therefore, while testing such resolutions, the Assistant Registrar/ Registrar would not only have to consider the provisions of Rules of the Society but also the statutory provisions to ascertain whether the resolutions are in conformity with those provisions.
In the instant case, it is not in dispute, at the relevant time, there were 12 members in the Committee of Management and the quorum for meeting of Committee of Management was two-third of its strength. In the General Body of the Society there were 19 members at that time. Out of those 19 members, 9 members, out of which 6 were of the Committee of Management, had given their affidavits denying participation in the meeting as well as holding of the meeting in which the disputed resolutions were allegedly passed. The original of the resolutions was admittedly not before the Assistant Registrar. Under the circumstances, before acting on copy of the resolutions, the minimum that was required from the Assistant Registrar was to ascertain: (a) whether there had been a meeting duly convened, as per the provisions of the Bye-laws of the Society and the Act, 1860; (b) whether such meeting was attended by requisite number of members of the Committee of Management as well as General Body of the Society, which completed quorum for a valid meeting; and (c) whether the resolutions were passed with the requisite majority. The Assistant Registrar, however, has failed to address the aforesaid issues while passing the impugned order. This Court is therefore of the view that the order passed by the Assistant Registrar is legally unsustainable.
The contention of the learned counsel for the third respondent that since no specific plea was taken by the petitioners that quorum for the meeting was not complete, the Assistant Registrar was not required to address the issue, cannot be accepted because the petitioners had denied holding of the meeting. On that plea, the Assistant Registrar was required not only to ascertain whether the meeting had taken place but also, in case it was found that some meeting was held, whether it was in accordance with the provisions of the Act, 1860 and Rules of the Society, inasmuch as, the Assistant Registrar is duty bound to test the validity of resolutions before registration, particularly when a challenge is laid to it.
The other contention of the learned counsel for the third respondent that the Assistant Registrar rightly drew adverse inference for non-production of register carrying minutes prior to 13.01.2013 also deserves rejection for two reasons. Firstly, the resolutions in question related to the date 13.01.2013 and after. And, secondly, nothing has been shown that the objector (the petitioner no.2) was called upon to produce register of prior date and despite such request he failed to produce the same. Such adverse inference might have been justified, in absence of proper explanation, if the same had not been produced upon direction to produce the same.
Accordingly, for all the reasons stated above, the order dated 19.04.2017 passed by the Assistant Registrar, Firms, Societies, Chits, Allahabad deserves to be set aside and is hereby set aside. The Assistant Registrar shall take a fresh decision on the objection taken by the petitioners in accordance with law and in the light of the observations made herein above, preferably, within a period of six weeks from the date of production of certified copy of this order. Needless to add that fresh decision shall be taken after giving opportunity of hearing to the parties concerned.
The petition stands allowed to the extent indicated above. There is no order as to costs.
Order Date :- 10.1.2018 AKShukla/-