Radhey Raman Misra And Others vs State Of U.P.Through Principal ... on 9 July, 2010

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Allahabad High Court

Radhey Raman Misra And Others vs State Of U.P.Through Principal ... on 9 July, 2010

By means of writ petition no. 3436 MS of 2010 the petitioners have assailed the order dated 15/5/2010, whereby the list of valid members of the general body of the society Madhusoodan Vidyalaya Association has been finalised and has been forwarded to the Sub Divisional Magistrate, Sadar, Sultanpur for holding the elections of the committee of management of the society.

Matapher Mishra, who is said to be a member of the society, has filed the writ petition no. 3514 (MS) of 2010 and the prayer in this writ petition is same as claimed in the aforesaid writ petition no. 3436(MS) of 2010.

It has been argued that the membership of 40 members inducted by the then President during the period of 2000-2003 has been held to be invalid and 50 members whose induction was being claimed by the respondent no.5-Shailendra Shukla have been held to be valid members. As per the bye-laws a member can only be inducted after following due procedure as prescribed in clause-4 of the Bye-laws of the society. The Deputy Registrar has decided the issue of membership solely on the basis of conjecture and surmises and has neither considered the material placed before it nor the relevant provisions of the bye-laws and as such the Deputy Registrar 2 has exercised jurisdiction vested in it with material irregularity. It has also been submitted that the Deputy Registrar accepted the membership of 50 members submitted by the respondent no.5 in consideration of the fact that some amount of money was deposited in a bank account alleged to be of the society by misreading Section 15 of the Societies Registration Act, 1860 which provides that members have to be first inducted in terms of the bye-laws and payment of subscription is to be considered later.

On behalf of respondent no. 5 it has been submitted that once the society has been declared time barred for want of election of the office-bearers and the order stood final then finalization of list of General Body members after inviting objection of respective parties vide order dated 15.5.2010 and declaring elections be held in exercise of power under Section 25(2) of the Act, it is not amenable under writ jurisdiction.

Learned Standing Counsel states that initially there were 227 members and after 1996, fifty members were inducted. Learned State Counsel as well as Sri S.C. Shukla states that the impugned order has been passed by the Deputy Registrar after considering the objections raised by the members including the President. However, both the Counsel failed to satisfy the court that while passing the impugned order the Deputy Registrar has strictly followed the provisions of clause-4 of the bye-laws which relates to the procedure prescribed for induction of members.

It is an admitted fact that as per clause-4 of the bye laws a member can only be inducted by the President. The two ingredients as provided in the aforesaid clause are that there should be an order in writing on an application and secondly the deposit of requite membership in the societies account. A perusal of the impugned order shows that the Deputy Registrar has given much weightage to the receipt of membership fee but has overlooked the first ingredient and as such it suffers from legal infirmities. It may be mentioned that the bye-laws of the society have been approved by the Deputy Registrar and as long as the same are in existence it has to be followed in the manner as provided in the Bye-Laws. The Deputy Registrar cannot travel contrary to the bye-laws.

In the instant case, as averred above, the Deputy Registrar has erred in not considering the first ingredient of Clause-4 of the bye-laws of the society and as such the impugned order cannot be sustained. In my opinion,the Deputy Registrar has also overlooked the statutory provision as enumerated in Section 15 of the Societies Registration Act while passing the impugned order.

In view of the above, the impugned order dated 15.5.2010 passed by the Deputy Registrar is hereby set-aside. The Deputy Registrar is directed to decide the issue afresh after giving opportunity of hearing to all concerned persons. All the parties are directed to co-operate with the Deputy Registrar and whatever documents are required by him for deciding the issue shall be furnished by the society. The Deputy Registrar shall make earnest endeavour to decide the issue latest by 31st August, 2010. It is further provided that the election which has been fixed for 11th July, 2010 by the Election Officer shall be kept in abeyance and will again be notified after finalisation of list of members.

Both the writ petitions stand allowed in above terms. 9.7.2010 HM/-

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Allahabad High Court