Allahabad High Court
Supreme Tower Apartment Owner ... vs State Of Up And Another on 24 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:171095 Court No. - 10 Case :- WRIT - C No. - 711 of 2022 Petitioner :- Supreme Tower Apartment Owner Associates Respondent :- State of U.P. and Another Counsel for Petitioner :- Manish Pandey,Nirbhay Kumar Bharti,Prashant Rai,Sanjay Mishra,Vijay Praksah Counsel for Respondent :- C.S.C.,Pratik Chandra,Sanjay Kumar Mishra,Sanjay Mishra,Vineet Sankalp with Case :- WRIT - C No. - 38346 of 2022 Petitioner :- V N Subramaniam And 2 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Prashant Rai Counsel for Respondent :- C.S.C. Hon'ble Kshitij Shailendra,J.
1. Heard Sri Nirbhay Bharti Giri, learned counsel for the petitioner, Sri M.C. Chaturvedi, learned Additional Advocate General, assisted by Sri R.P. Tiwari, learned Standing Counsel for the State-respondent no.1 and 2, Sri Rakesh Pande, learned Senior Counsel, assisted by Sri Prashant Rai and Sri Amit Sachan, learned counsel representing the intervener, Sri Sanjay Kumar Mishra, Sri Vineet Sankap and Sri Vijay Prakash for other interveners, Ms. Shashi Kiran, whose intervener application had already been allowed by this Court by order dated 24.05.2022, and Ms. Sadhana Sandhu also in the capacity of intervener (both through video conferencing mode) and perused the record.
2. Considering the order of Apex Court passed on 27.04.2022, this Court by order dated 17.08.2023, made it clear that the entire writ petition with pending applications shall be finally decided on 24.08.2023, i.e. today.
3. Today, learned counsel for all the parties as well as some parties in person have been heard through physical as well as video conferencing mode on the merits of their rival contentions contained in the writ petition as well in support of their intervener and interim applications.
4. Connected Writ-C No.38346 of 2022 has been filed substantially with a prayer that fresh elections be held, whereas Writ-C No.711 of 2022 has been filed challenging the order dated 13.12.2021 whereby the Deputy Registrar, Firms, Societies and Chits, Meerut, after making an observation to the effect that the elections dated 03.10.2021 conducted under the supervision of an Observer Sri J.P. Uppal, who was appointed by the office of the Deputy Registrar, are valid and raising doubts on the elections dated 15.09.2021 set up by the petitioner and declaring the same as without any competence, it has been observed that since under the provisions of Section 25(1) of the Societies Registration Act, 1860, it is the Prescribed Authority, i.e. the Sub-Divisional Officer of the concerned area, who has competence to adjudicate upon the dispute with regard to elections, let the parties may approach the Prescribed Authority as per the requirement of 1/4th members as mentioned in Section 25(1) of the Act. A further observation has been made that in case any proceedings are pending in relation to the Board of Management, the same shall be subject to the decision which shall be finally taken by the Sub-Divisional Officer.
5. As per the case of the parties, Supreme Tower Apartment Owner Association is an owners' Association registered with the Registrar of the Societies as communicated by letter/ Sl. No.6400 dated 16.02.2016 (Letter No.61629-M; Register No.1103 on 28.01.2016).
6. There is no dispute about the Bye-laws governing the elections of the Board of Management. The dispute is with regard to the elections held from time to time and, presently, with regard to the elections dated 15.09.2021 in which one Shiv Ram Sharma claims to have been elected as President of the Association and other elections dated 03.10.2021 in which one Sadhana Sandhu claims to have been elected.
7. The contention of Ms. Sadhana Sandhu is to the effect that her elections were lawfully held after the Deputy Registrar had nominated and appointed an election Observer as per the material placed before this Court along with intervener application sent by registered post to the Registrar General of this Court, whereas the submission of learned counsel for the petitioner is that the said elections were invalid as the same were held without there being any list of members duly registered in the office of Assistant Registrar.
8. From perusal of the order sheet of this case, I find that the Deputy Registrar was directed to file an affidavit in relation to some elections held on 10.10.2020 and also to the effect as to whether the list of office bearers on the basis whereof the said elections were held, was registered in his office or not.
9. An affidavit was filed by the Deputy Registrar, namely, Arvind Kumar Singh and, taking note of the stand taken by him, this Court passed following order on 12.05.2022:-
"Heard learned counsel for the parties.
This Court on 25.02.2022 directed the Deputy Registrar, Firms, Societies & Chits, Meerut Division, Meerut to file an affidavit clarifying his stand in respect of the elections held on 10.10.2020 and the registration of list of office bearers elected in the said elections.
Though an affidavit has been filed by the Deputy Registrar, Firms, Societies & Chits, Meerut Division, Meerut through Ravindra Kumar Singh but he has no where uttered even a single word in his affidavit as to what happened in the previous elections dated 10.10.2020.
Thus, in my considered view it is not a proper conduct of the Deputy Registrar, Firms, Societies & Chits, Meerut Division, Meerut.
Let the Deputy Registrar, Firms, Societies & Chits, Meerut Division, Meerut appear before this Court along with records pertaining to the elections held on 10.10.2020 and also file his affidavit as required by this Court on the next date fixed.
Put up this matter again on 24.05.2022.
In the meanwhile, since the petition before the Delhi High Court has been withdrawn in order to maintain peace and harmony and also to ensure that basic amenities are available to the residents, the Sub Divisional Magistrate concerned, in whose territorial jurisdiction the property lies, is directed to supervise the payments of bill of water, electricity and security and other essential services and is also directed to ensure that basic amenities in the apartments are made available without any interruption."
10. Pursuant to aforesaid order dated 12.05.2022, the Deputy Registrar personally appeared before this Court and filed an affidavit of compliance and with regard to the query of the Court, he stated on oath as well as in person that since after 2016, no list of office bearers has ever been registered under Section 4(1) of the Act, 1860.
11. Considering the stand taken by the Deputy Registrar, namely, Arvind Kumar Singh, who himself had nominated Observer to hold elections dated 03.10.2021, this Court passed the following interim order on 24.05.2022:-
"Heard learned counsel for the parties.
Counter affidavits filed today are taken on record.
Rejoinder affidavit, if any, may be filed within a period of four weeks from today.
Impleadment application filed today is also taken on record.
Ms. Shashi Kiran has filed intervention application which is taken on record. She claims to be the ex-president and is supporting the contesting respondents, who themselves stand represented through counsel.
Today, the body recognised by the Deputy Registrar Societies under his order dated 13.12.2021 is held to be a necessary party.
The petitioners are directed to implead the body recognised through its office bearers forthwith.
The Intervention application on behalf of the residents of the Society is also allowed in terms of Chapter XII of Rule 5-A of the Allahabad High Court Rules, 1952.
The argument advanced by the learned counsel for the petitioner is that the Deputy Registrar, Societies was not justified in accepting one set of election and discarding the other while exercising power under Section 4(1) of the Societies Registration Act, 1860 (in short the Act, 1860).
In order to appreciate the arguments and the order passed by the Deputy Registrar, Societies, the Deputy Registrar, Societies was directed to appear before this Court and to file an affidavit as to whether elections were ever recognised in recent past or not and as to whether the list of elected office bearers of the Society was registered under Section 4(1) of the Act, 1860 in the year 2020 for 2020-21.
The Deputy Registrar, Societies, Meerut, Sri Arvind Kumar Singh is present in Court and has also filed an affidavit of compliance. It is stated vide paragraph 3 of the affidavit that the list of office bearers alleged to have been elected on 10.10.2020 of the Society as the Board of Management of Association was never registered under Section 4(1) of the Act, 1860. He has made a statement before the Court today that since the year 2016, list of office bearers of the Society called as Board of Management of Association has never come to be registered under Section 4(1) of the Act, 1860 by the Deputy Registrar, Societies.
In such circumstances, prima facie, the Court is of the view that if the previous elections have never been recognised and the list of office bearers of the Society namely the Board of Management of Association had never been registered under Section 4(1) of the Act, 1860, the Deputy Registrar, Societies either should have proceeded to hold election under Section 25(2) of the Act, 1860 or ought to have referred the matter to the prescribed authority for adjudication of the election dispute between two rival claimants under Section 25(1) of the Act, 1860 in the light of the decision of Full Bench of this Court in case of C/M Anjuman Kherul Almin, Allahganj & anr vs. State of UP & ors, 2014 (2) AWC 1205.
In such above view of the matter, the order passed by the Deputy Registrar, Societies is not sustainable. Accordingly, the order passed by the Deputy Registrar, Societies dated 13.12.2021 is hereby stayed until further orders of this Court.
This is a case where in the above backdrop of facts, directions can be issued to the Deputy Registrar, Societies to hold election under Section 25(2) of the Act, 1860 to put an end to the controversy but both the contesting parties do not agree and want that this case be heard and decided on any date that may be fixed by this Court.
In view of the above, as an interim measure in the meanwhile, in the interest of residents of the apartment, it is provided that the management and maintenance of apartments shall continue to be done by the Sub Divisional Magistrate concerned as was authorised by the previous order dated 12.05.2022. He shall continue to only ensure the maintenance of the basic amenities such as water, electricity, cleanliness and also lift maintenance is not adversely affected for the dispute between the parties claiming to have held valid elections.
Exemption application filed today on behalf of Deputy Registrar, Societies stands allowed.
Personal appearance of the Deputy Registrar Societies is exempted in the meanwhile until further orders of this Court.
Let this matter be listed for final disposal on 14.07.2022."
12. The aforesaid interim order is on the lines that in case the Deputy Registrar was satisfied that the power to adjudicate upon validity of any elections vests in the Prescribed Authority under Section 25(1) of the Act, as per the decision referred to in the interim order, the Deputy Registrar was not justified in attaching validity to any elections pressed before him.
13. Today, various arguments have been advanced by Ms. Shashi Kiran who was elected as President in elections dated 10.10.2020 and Ms. Sadhana Sandhu who was elected as President in elections dated 03.10.2021 stating that the petitioner and persons under his control, are causing interference in the management of the affairs of the society and whenever the lawful elections were sought to be held with the assistance of the Deputy Registrar, they caused interference not only by filing writ petition before the Delhi High Court but also a civil suit and, later on, withdrew both proceedings and now have challenged the order dated 13.12.2021 before this Court. They have also argued that they being ladies are being harassed and the petitioner and his men do not want that they may come in power. They have also referred to various correspondences entered into in between them and the Assistant Registrar so as to convince the Court that whatever has been done by the Deputy Registrar by the order impugned, in so far as attaching sanctity and validity to the elections dated 03.10.2021 is concerned, the same should not be interfered by this Court.
14. Regarding amenities in the concerned campus where the property is situated, it has been submitted that though this Court directed the Sub-Divisional Officer by order dated 12.05.2022 to ensure that basic amenities are made available to the residents and also to supervise the payment of bills of water, electricity and security and other essential services without any interruption, the Sub-Divisional Magistrate has delegated his power upon some persons who belong to the group of the petitioner and, therefore, everything stands disrupted and the residents are suffering a lot.
15. Various other intervener applications filed in this case are on behalf of the residents of the campus and it appears that their grievance is also to the effect that on account of a dispute amongst the persons striving to constitute Board of Management, their lives have become hell and, therefore, this Court should pass appropriate orders for maintenance of proper amenities and even the directions issued under the order dated 12.05.2022 have become merely a piece of paper and nothing more.
16. In so far as the validity of order impugned is concerned, the submission of learned counsel for the petitioner as well as State side as also some of the interveners is to the effect that once the Deputy Registrar made a statement before the Court on oath as well as by appearing in person that no list under Section 4(1) of the Act, 1860 has been registered before him after 2016, any elections held thereafter by either side on the basis of any list prepared by them at their own, loose their significance.
17. However, reliance has been placed on behalf of intervener Sadhana Sandhu upon a judgment of this Court in the case of Committee of Management, Pratibha Shikshan Samiti and another Vs. State of U.P. and others: 2023 (5) ADJ 94 (LB) and relevant portion of the same is being quoted herein below:-
".....For convenience paras 6, 7 and 8 of Committee of Management and another versus Asstt. Registrar, Firm Societies and others (supra) are reproduced below :
"6. For appreciating the controversy raised in the present writ petition it would be relevant to refer to Sections 25(2) and (3) of the Societies Registration Act, 1960, which are quoted below:
"25. Disputes regarding election of office bearers-(1) .........
(2) Where an order made under sub-section (1), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office bearers of a society has not been held within the time specified in the rules of that society/ he may call 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 officer authorized by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.
(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.
Explanation For the purposes of this section, the expression 'prescribed authority' means an office or Court authorized in this behalf by the State Government by notification published in the Official Gazette." 7. A bare reading of the aforesaid section would establish that the right to convene a meeting for the purposes of holding elections of the office-bearers of the society.
Explanation For the purposes of this section, the expression 'prescribed authority' means an office or Court authorized in this behalf by the State Government by notification published in the Official Gazette."
7. A bare reading of the aforesaid section would establish that the right to convene a meeting for the purposes of holding elections of the office-bearers of the outgoing Committee of Management and after expiry of the term of the office bearers the society is lost only when the Registrar passes order under Section 25(2) of the Act for convening a meeting of the general body of the society for the purposes of holding fresh election of the Committee of Management.
....... 18. We are of the view that upon a conjoint reading of Section 25(2) and Section 25(3) of the Act, the power of the Committee of Management to convene a meeting for the purpose of holding an election gets eclipsed only when the Registrar has assumed jurisdiction and has taken steps to convene a meeting under Section 25(2) of the Act. We make it further clear that so long as an order for convening a meeting and for holding an election is not passed by the Registrar under Section 25(2) of the Act, the power to convene a meeting for the purpose of holding an election continues with the Committee of Management, even after the expiry of its terms unless it is specifically prohibited in the Rules of that society. In this regard, our view is fortified by a decision of a Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society and others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi and others, 2017 (1) ADJ 1, wherein the Full Bench held:-
"As would be evident from a reading of sub-section (3), the power and jurisdiction of any other authority or person to call a meeting for the purpose of elections stands eclipsed only in a situation where a meeting has already been called by the Registrar under sub-section (2). In fact sub-section (3) recognises that a meeting for the purposes of elections may in fact be convened by any other authority or by any other person. The power of that other authority or person to convene such a meeting stands taken away only if the Registrar has assumed jurisdiction and steps under sub-section (2) to convene a meeting."
19. In the light of the aforesaid, the answer to question no.1 is, that the Committee of Management even after the expiry of its term can convene a meeting for the purpose of holding an election unless it is specifically barred under the Rules of its society. Such right continues till such time the Registrar passes an order under Section 25(2) of the Act after which no further meeting could be convened thereafter by the Committee of Management in view of sub-Section (3) of Section 25 of the Act. ?"
18. Relying upon the aforesaid judgment, it has been argued that the Committee of Management, even after expiry of its term, can convene meeting for the purposes of holding elections unless it is specifically barred under the rules of the Society.
19. I have perused the said judgment and I find that the ratio of the said judgment is that though the Committee after expiry of term has been held to be empowered to convene a meeting, in the same judgment it has been held that the said right continues till such time the Registrar passes an order under Section 25(2) of the Act.
20. Further, I find that the facts of the present case are not identical to the case of Committee of Management (supra) inasmuch as there was no such issue before this Court in the said case as to whether the list on the basis of which the elections were held was registered or not in the office of Deputy Registrar.
21. Having heard the learned counsel for the parties, I find that once no list is registered after 2016 under Section 4(1) of the Act, 1860 and, even otherwise, drastic amendments have been made in Section 4 and 4-B of the Act, as applicable in the State of U.P., the Court cannot ignore the aspect of purity of the list of office bearers and the said purity would stand reflected only when the Deputy Registrar, during the course of exercising his power under Section 25(2) of the Act, finalizes the list, i.e. the electoral college, for the purposes of holding elections.
22. In view of the clear stand taken by the Deputy Registrar, as noted herein above, coupled with the fact that the Deputy Registrar in the order impugned was himself of the opinion that with regard to the disputed elections the matter can be examined by the Prescribed Authority under Section 25(1) of the Act while setting aside both the findings with regard to any of the elections held by the respective parties and also to make a reference at this stage to the Prescribed Authority under Section 25(1) of the Act, these two writ petitions are being disposed of in the following terms:-
(a) The order impugned dated 13.12.2021 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut is set aside, in toto.
(b) The Deputy Registrar is directed to prepare a tentative list of members calling upon the parties and after inviting objections and dealing with the same, the Deputy Registrar shall attach finality to the list and shall register the same in his office in exercise of power under the relevant provisions of Societies Registration Act, 1860.
(c) The aforesaid exercise shall be completed by the Deputy Registrar within a period of four months from the date a certified copy of this order is produced before him by any of the parties.
(d) As soon as the list is finalized, the Deputy Registrar shall exercise his power under Section 25(2) of the Act to hold elections in accordance with the Bye-laws, applicable as on today, in a democratic way by nominating an Observer within a period of next two months.
(e) The Sub-Divisional Officer who has acted in teeth of the directions issued by this Court under the order dated 12.05.2022 is directed to forthwith visit the premises and take over the control over the basic amenities and all aspects associated thereto so that the residents may not face any difficulty in so far as their habitation quality and comfortable in the apartment is concerned.
23. All the pending intervener or other misc. applications stand disposed of.
Order Date :- 24.8.2023 AKShukla/-