Uttarakhand High Court
Sardar Jaswinder Singh Gill vs Election Officer - Gurudwara ... on 13 November, 2018
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1932 of 2018
Sardar Jaswinder Singh Gill ......Petitioner
Versus
Election Officer - Gurudwara Nanakmatta Sahib
And Others .......Respondents
Present: Mr. Rajendra Pande, Mr. S.R.S.
Gill and Mr. Devesh Bishnoi, Advocates, for
the petitioner.
Mr. Aditya Singh, Advocate, for
the private respondents no. 2, 3 and 4.
Hon'ble Sudhanshu Dhulia, J. (Oral)
Petitioner was elected as the President of the Committee of Management of a society known as "Gurudwara Sri Nanakmatta Sahib". The term of the petitioner, as President, according to the rival group i.e. private respondents no. 2 to 4, has already come to an end. This Committee of Management though was constituted by the order of this Court dated 8.9.2016. There is chequered history of litigation based on claims of rival groups over the control over the affairs of the society i.e. "Gurudwara Sri Nanakmatta Sahib". A learned Single Judge of this Court vide his order dated 8.9.2016 passed in Writ Petition (M/S) No. 7064 of 2001, had given the following directions:
"48. In view of the above discussion, the writ petition is disposed of by issuing following directions:
1. There shall be an Election Officer, who shall be responsible for delimitation of wards/halkas, preparation of electoral rolls, 2 qualification of electors, qualification of members, elections, publications of results, first meeting of the elected members, election of office bearers, first meeting of committee, constitution of sub-committees and amendment or alteration of Memorandum of Association.
2. Sardar Kanwar Amninder Singh, H.J.S., presently posted as Registrar, Uttarakhand High Court, Nainital, whose name is also suggested at Bar, is appointed as Election Officer.
3. The Election Officer will determine the number of halkas/wards and the extent of each ward.
4. The Election Officer will take necessary and suitable decision with regard to the affiliation of any new Gurudwara in any of the ward, determined by the Election Officer.
5. The Election Officer for the purposes of the completion of the election process including de-limitation/re-determination of wards, preparation of electoral rolls, verification of electors, qualification of members, election process, publication of results, first meeting of elected committee, election of office bearers, first meeting of the committee, constitution of subcommittees etc., may constitute a committee not exceeding five members, whom the Election Officer finds suitable. Such five persons should be respectable and educated persons with no criminal record and no history of association with election of 3 Gurudwara Sri Nanakmatta Sahib. These persons should have no interest or association with any candidate or group. They will also give an undertaking to the Election Officer that they have no interest in the election and they will not participate in canvassing or election etc. in any manner. The Election Officer shall follow such procedure, which is reasonable and on the basis of the principles of natural justice and in accordance with the Sikh principles and values.
6. For all purposes, the registered Memorandum of Association, duly registered in the Office of Registrar, Societies and Chits, Kumaon Area, Haldwani on 16.11.1987, shall be the base guidelines and the Scheme of Management and administration of holy shrine known as Gurudwara Sri Nanakmatta Sahib. There should be no diversion till newly elected committee joins, whatever decision is taken by the Election Officer, that should not be in contravention of 1987 Memorandum of Association. There shall be no patron at Gurudwara Sri Nanakmatta Sahib.
7. In view of the changed circumstances, following changes are being made, as an interim arrangement till a committee is duly elected, so that the scheme is successfully implemented: (a) There shall be no nomination of one member by U.P. Sikh Central Board, Lucknow. (b) The nomination of an intellectual member and one Majahabi Sikh by 22 Prabandhak Committee, 4 Gurudwara Sri Nanakmatta Sahib is deferred till a duly elected committee comes into existence. That committee will take decision in this regard. (c) The duly elected committee of Gurudwara Sri Nanakmatta Sahib will nominate one person having a very good reputation in the society and who has a long standing experience in the Sikh religious studies or in the field of science or literature or education or law.
8. For time being, for the purposes of Langar and other daily routine expenses, a sum of Rs.
50,000/- shall be kept in cash, in hand, in the Office of the committee. All other amount received, shall be kept in the bank account of the committee on every alternate day.
9. The duly elected committee, in consultation with Election Officer will have a right either to follow the Memorandum of Association registered on 16.11.1987 with necessary amendments or to frame a new Memorandum of Association.
10. The amended or new Memorandum of Association shall be got registered under the Office of Registrar, Societies and Chits, Uttarakhand.
11. The District Magistrate, Udham Singh Nagar, who has been appointed as a Receiver of the Gurudwara Sri Nanakmatta Sahib by the order of this Court, will provide all necessary assistance and facilities in the form of resources, manpower etc. as may be 5 required by the Election Officer for performing his responsibility as entrusted to him.
12. The Senior Superintendent of Police, Udham Singh Nagar shall also provide necessary assistance in the form of security etc. as and when asked by the Election Officer for the complete process of election of Prabandhak Committee of Gurudwara Sri Nanakmatta Sahib.
13. In case, Election Officer wants to seek any clarification or further direction, in that event, he can approach this Court.
14. The final result of the election alongwith list of elected body and executive committee will be submitted by the Election Officer within a period of six months before this Court.
15. As soon as the Election Officer is appointed, the Receiver (District Magistrate, Udham Singh Nagar) shall take all decision with regard to the management and administration of Gurudwara Sri Nanakmatta Sahib and its properties, in consultation with the Election Officer, till new committee is constituted.
16. The Receiver (District Magistrate, Udham Singh Nagar) will handover the charge of the administration and management of Gurudwara Sri Nanakmatta Sahib to the elected committee after it is duly elected.
17. The Election Officer will inform the Receiver about the same.
618. Before handing over the charge to the duly elected committee, the Receiver shall get the accounts audited by one or more auditor duly qualified to act as an auditor.
The above arrangement is of temporary arrangement till newly elected body is duly constituted."
Subsequent to this, under the supervision of the Election Officer, elections to the Committee of Management were held and the newly elected Committee of Management came into existence and with the arrangement of the parties, the petitioner was to remain President of the Committee of Management for the initial one and half years and the respondent no. 3 Sewa Singh was to remain the Vice President during this initial period of one and half years and thereafter for the remaining three and half years the private respondent no. 3 Sewa Singh was to remain the President of the Committee of Management and the petitioner was to remain the Vice President of the Committee of Management for the remaining term.
During the tenure of the petitioner as the President of the Committee of Management, an FIR was lodged in which private respondents no. 2 to 4, who belong to the rival group, were implicated. Consequent to this, the Committee of Management took a decision suspending the respondents no. 2, 3 and 4 from the membership of the society. Against this suspension order, the said private respondents approached this Court by way of filing the miscellaneous applications being CLMA Nos. 752, 753 and 754 of 2018 in WPMS No. 7064 of 2001 wherein the following order was passed by this Court on 15.2.2018:
"Mr. S.K. Mandal and Mr. Saurabh Pandey, Advocates for the petitioners.7
Mrs. Anjali Bhargagav, Brief Holder for the State of Uttarakhand.
Mr. S.R.S. Gill, Advocate for respondent no. 6.
Mr. J.S. Virk, Advocate for respondent nos. 12 to 15.
Ms. Charanjeet Kaur, Advocate for respondent nos. 26, 38 & 75.
Mr. Ravi Babulkar, Advocate for Mr. Dhana Singh, General Secretary, Gurudwara Nanakmatta Prabandhak Committee.
Mr. Aditya Singh, Advocate for applicants/respondent nos. 8, 13 & 133.
Heard learned counsel for the parties. Learned counsel for the applicants seeks permission of this Court to withdraw these misc. applications with liberty to approach the Court Commissioner.
The misc. applications are dismissed as withdrawn. Without observing anything on the contents of the applications, permission is granted to the applicants to approach the Election Officer or for approaching appropriate forum in accordance with law."
Meanwhile, on a complaint moved by the private respondent no. 2 herein Mr. Preetam Singh Sandhu, the Election Officer issued a notice to the petitioner which was challenged in Writ Petition (M/S) No. 1665 of 2018 which was disposed of on 12.6.2016 by passing the following order:
"Mr. S.S. Ajmani, Advocate with Mr. S.R.S.Gill, Advocate, for the petitioner.8
The petitioner is a President of Gurudwara Prabhandhak Committee, Nanakmatta Sahib, Nanakmatta, District Udham Singh Nagar.
Pursuant to the orders passed by the learned Single Judge of this Court in a writ petition being WPMS No.7064 of 2011, the elections to the Committee of Management were held under the supervision of a Judicial Officer, namely, Kanwar Amninder Singh, who was appointed by this Court as the Election Officer. After the elections were completed, the elected Committee of Management of which the present petitioner is the President has taken over the charge. It appears that there is a dispute between the President and the General Secretary of the Management Committee, namely, Preetam Singh Sandhu. On a complaint moved by Shri Preetam Singh Sandhu, the Election Officer has given a notice to the petitioner. Aggrieved, the petitioner has filed the present writ petition before this Court.
The contention of the learned counsel for the petitioner is that the Election Officer has a limited jurisdiction left as of now, which is only the preparation of bye-laws, as rest of the work has been completed and therefore giving a notice to the petitioner on a complaint of the General Secretary is totally outside his jurisdiction.
Without expressing any opinion on the merit of the case, the petitioner is given a 9 liberty to move a representation before the Election Officer explaining the entire sequence of events, including the orders passed by this Court in various writ petitions which led to the appointment of the Election Officer and the remaining work to be performed by the Election Officer.
In case, such a representation is moved by the petitioner, the Election Officer shall pass a speaking order within a period of three weeks from the date of filing the representation, after hearing all the relevant parties.
In view of the above, the writ petition stands disposed."
Consequent to this, the petitioner approached the Election Officer by way of filing the representation on which the Election Officer has passed a detail order dated 26.6.2018 which is presently being challenged by the petitioner before this Court. Effectively by the impugned order, the suspension of the private respondents was set aside and the representation of the petitioner was also rejected. The net result of the order dated 26.6.2018 was that the private respondents have now come in the control of the Committee of Management.
The case of the petitioner before this Court is that the Election Officer has not only exceeded his jurisdiction by entertaining the application of the private respondents, as the matter relates to membership of a society where the Prescribed Authority has the jurisdiction, but he has also passed an order setting aside the resolution 10 dated 2.4.2018 of the Committee of Management which was never challenged before the Election Officer.
The dispute which has been decided by the Election Officer primarily relates to the affairs of a society and its management which is, in fact, cognizable by the Registrar under Sections 22, 24 and 25 of the Societies Registration Act, 1860 which read as under:
"22. Power of Registrar to call for information.--(1) The Registrar may, by written order, require society to furnish in writing such information or document within such time, being ordinarily not less than two weeks from the date of receipt of the order by the society, as he may specify in the order in connection with the affairs of the society or any documents filed by the society under this Act.
(2) On receipt by the society of an order under sub-section (I), it shall, be the duty of the President, Secretary or any other person authorised in this behalf to furnish such information or documents.
24. Investigation of affairs of a society.-- (1) Where on information received under Section 22 or otherwise, or in circumstances referred to in sub-section (3) of section 23, the Registrar is of opinion that there is apprehension that the affairs of a society registered under this Act are being so conducted as to defeat the objects of the society or that the society or its governing 11 body by whatever name called, or any officer thereof in actual effective control of the society is guilty of mismanaging its affairs or of any breach of fiduciary or other like obligations, the Registrar may, either himself or by any person appointed by him in that behalf, inspect or investigate into the affairs of the society or inspect any institution managed by the society.
(2) It shall be the duty of every officer of the society when so required by the Registrar or other person appointed under sub-section (1) to produce any books of account and other records of or relating to the society which are in his custody and to give him all assistance in connection with such inspection or investigation.
(3) The Registrar or other person appointed under sub-section (1) may call upon and examine on oath any officer, member or employee of the society in relation to the affairs of the society and it shall be the duty of every officer, member or employee, when called upon, to appear before him for such examination.
(3-A) The Registrar or other person appointed under sub-section (1) may, if in his opinion it is necessary for the purpose of inspection or investigation, seize any or all the records including account books of the society;
12Provided that any person from whose custody such records are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of the person have the custody of such records.
(4) On the conclusion of the inspection or investigation, as the case may be, the person, if any, appointed by the Registrar to inspect or investigate shall make a report to the Registrar on the result of his inspection or investigation.
(5) The Registrar may, after such inspection or investigation, give such
directions to the society or to its governing body or any officer thereof as he may think fit, for the removal of any defects or irregularities within such time as may be specified and in the event of default in taking action according to such directions, the Registrar may proceed to take action under Section 12-D or Section 13-B, as the case may be.
25. Disputes regarding election of office- bearers.-- (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 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:
13Provided that the election of an office- bearer shall be set aside where the prescribed authority is satisfied--
(a) that any corrupt practice has been committed by such office-bearer; or
(b) that the nomination of any candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote which is void or by any non-compliance with the provisions of any rules of the society.
Explanation I.--A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person--
(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election;
(ii) with a view to inducing any elector to give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any 14 place of employment, or holds out any promise of individual advantage or profit to any person;
(iii) abets (within the meaning of the Indian Penal code) the doing of any of the acts specified in clauses (1) and (ii);
(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interest, will become or will be rendered an object of divine displeasure or spiritual censure;
(v) canvasses on grounds of caste, community, sect or religion;
(vi) commits such other practice as the State Government may prescribe to be a corrupt practice.
Explanation II.--A 'promise of individual advantage or profit to a person' includes a promise for the benefit of the person himself, or of any one in whom he is interest.
Explanation III.--The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.
(2) Where by an order made under sub- section (I), 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 15 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 authorised 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 officer or court authorised in this behalf by the State Government by notification published in the Official Gazette."
There is already a reference pending before the Prescribed Authority by the order dated 5.4.2018 as the matter has been referred by the Registrar in exercise of its power under Section 25 of the Societies Registration Act, 1860.
Be that as it may, the fact remains that the matter relates to the Section 22 and 24 of the Societies Registration Act, 1860. All the parties before this Court, agree that as far as the suspension of the private 16 respondents is concerned, both the parties shall appear before the Registrar concerned and put forward their case. The Registrar shall decide as to whether the suspension of the private respondents was proper and in accordance with law and thereafter pass appropriate orders. Meanwhile, till a decision is taken by the Registrar in exercise of its powers under Section 22 and 24 of the Societies Registration Act, 1860, the proceedings before the Prescribed Authority shall remain in abeyance. The order dated 26.6.2018 shall also remain in abeyance till a decision is taken by the Registrar. The present management who is under the control of the Committee of Management shall continue to work but with the following restrictions:
(i) No major financial or administrative decision shall be taken by the Committee of Management or its President till a decision is taken by the Registrar under Section 22 and 24 of the Societies Registration Act, 1860.
(ii) All decisions shall be taken by the
President or the Committee of
Management under the overall
supervision and control of the District Magistrate, Udham Singh Nagar.
(iii) In case, any major decision is to be taken which has urgency then it will be done after the approval of the District Magistrate.
It is made clear that the day-to-day expenses such as the expenses incurred on Langar will not be considered to be "major decisions".
17It is also made clear that the reference which is being made to the Registrar is with consent of all the parties and subject to the above restrictions, a decision on the same shall be taken in accordance with law within a period of five weeks from the date a certified copy of this order is produced before the Registrar. District Magistrate, Udham Singh Nagar is also directed to see that law and order is maintained, and the Committee of Management and the society function as per the above directions, till a decision is reached in the case by the Registrar.
With the directions as above, this writ petition stands disposed of.
(Sudhanshu Dhulia, J.) 13.11.2018 Prabodh