Allahabad High Court
Shri Sarveshwari Samooh, Registered ... vs State Of U.P. Through Its Secretary, ... on 15 April, 2005
Equivalent citations: 2005(3)AWC2201, 2005(3)ESC2006
Author: Arun Tandon
Bench: Arun Tandon
JUDGMENT Arun Tandon, J.
1. Heard Sri Ashok Khare, Senior Advocate, assisted by Sri Ajay Bhanot, Advocate on behalf of the petitioner, Sri Shashi Nandan, Senior Advocate, assisted by Sri Manish Deo Singh Advocate on behalf of the respondent No. 4, Sri W.H. Khan, Advocate on behalf of the respondent No. 5 and Learned Standing, Counsel on behalf of the respondent Nos. 1 to 3.
2. Sri Sarveshwari Samooh Varanasi is a society duly registered under the Societies Registration Act, 1860. The said society has its own registered bye-laws. The said society through? its alleged President Baba Siddharth Gautam Ram as well as its alleged Secretary Sri Udai Bhan Singh has filed this writ petition against an order dated 3rd January, 2005 passed by the Registrar, Firms, Societies and Chits, Lucknow, whereby he has held that Sri S.P. Singh and Sri Gurupad Sambhav Ram are the Secretary and President of the society respectively. By the said order he has also rejected the complaint made by Sri Uday Brian Singh dated 31st February, 2004.
3. The relevant facts for the purpose of deciding the present writ petition are that the aforesaid society was registered in the year 1961 under Societies Registration Act, 1860. The founder of the society, namely, Sri Baba Bhagwan Ram continued, as such, till he attained 'Samadhi' on 29th November, 1992.
4. On behalf of the petitioner it is contended that on the strength of the will executed by Sri Baba Bhagwan Ram the petitioner No. 2, namely, Sri Baba Siddharth Gautam Ram assumed the office of the President of the society. One Sri S.P. Singh, respondent No. 4 in the present writ petition initiated proceedings being Original Suit No. 265 of 1993 with the relief of permanent injunction to restrain the defendants including the present petitioner from interfering in the functioning of Sri S.P. Singh as the office bearer of the society and in the effective and legal control of the affairs of the said society. The application for temporary injunction filed in the said suit by the plaintiff, Sri S.P. Singh, was rejected by the trial court. Feeling, aggrieved by the aforesaid order of the trial court, Sri S.P. Singh filed First Appeal From Order (FAFO) No. 718 of 1993 before this Court. The Hon'ble High Court decided the said appeal on 8th October, 1993 recording a finding that the petitioner No. 2, Sri Baba Siddhartha Gautam Ram was actual and legal President of the society. It was further directed that the affairs of the society shall be managed in accordance with the registered bye-laws by Sri Baba Siddhartha Gautam Ram as the president. The order of this Court dated 8th October, 1993 has also been upheld by the Hon'ble Supreme Court vide judgment and order dated 28th January, 1994. In such circumstances, it is claimed that the petitioner No. 2 continued to exercise all the powers of the President of the society.
5. For certain reasons, the petitioner No. 2 delegated the powers vested in him by virtue of being the President of the society to Sri Baba Sambhav Ram vide letter dated 29th November, 1997. However, the powers so delegated to Sri Baba Sambahv Ram are said to have been withdrawn vide letter dated 25th January, 1993 by petitioner No. 2. Sri S.P. Singh alongwith Sri Baba Sambhav Ram moved an application before the Assistant Registrar, Firms, Societies and Chits, Varanasi stating therein that the petitioner No. 2 has resigned from the post of President on 29th November, 1997 and Baba Sambhav Ram has assumed the office of the President and a set of office bearers has. been constituted with Sri S.P. Singh as the Secretary, this list of new office bearers be registered under Section 4 of the Societies Registration Act, 1860. The Assistant Registrar, Firms, Societies and Chits by means of the order dated 2nd July, 1998 rejected the application filed by Sri S.P. Singh and Sri Baba Sambhav Ram. Against the said order of the Assistant Registrar dated 2nd July, 1998 Sri S.P. Singh filed a review application before the Assistant Registrar, The said application was also rejected by the Assistant Registrar vide order dated 23rd July, 1998. The renewal certificate was renewed and was handed over to petitioner No. 2, which was effective for a period of five years w.e.f. 11th October, 2000. It appears that earlier renewal of registration certificate was handed over to Sri S.P. Singh. The Assistant Registrar vide order dated 22nd October, 2000 accordingly required Sri S.P. Singh to return the renewal of registration certificate, which was issued in his favour on 11th October, 2000.
6. It is further contended that the list of office bearers of the society was duly submitted before the Assistant Registrar for the year 2003-04 and the same was also accepted and duly registered on 9th December, 2003. It appears that Sri S.P. Singh raised objections with regard to the registration of the list of office bearers before the Assistant Registrar, Firms, Societies and Chits who in turn issued order dated 22nd January, 2004 requiring Sri S.P. Singh to raise such objection before a competent court as the list of office bearers for the year 2003-04 has already been registered.
7. However, the Registrar, Firms, Societies and Chits, Lucknow vide letter dated 14th January, 2004 in the meantime said to have issued directions to the Assistant Registrar to act in accordance with law. The Assistant Registrar in compliance thereof forwarded all the relevant documents vide letter dated 23rd April, 2004 to the Registrar, Firms, Societies and Chits, Lucknow and requested that the Registrar himself may decide the controversy at his level. Before the Registrar, Lucknow the petitioner No. 2 as well as Sri S.P. Singh and Baba Sambhav Ram submitted written statements and led necessary evidence in support of their respective claims. The Registrar, Lucknow on the basis of the aforesaid documents proceeded to pass an order dated 3rd January, 2005, which is under challenge in the present writ petition.
8. It is contended on behalf of the petitioner that since the Assistant Registrar has registered the list of office bearers and has rejected the application filed by Sri S.P. Singh vide order dated 22nd January, 2004 with a direction to get the dispute decided in competent court of jurisdiction the controversy stood closed upto the level of the Registrar, Lucknow. If Sri S.P. Singh was aggrieved by the said order of the Assistant Registrar it was open to him to initiate the proceedings under Section 25(1) of the Societies Registration Act, 1860 or to file a civil suit. The Registrar, Lucknow had no jurisdiction or authority of law to have sit in appeal over the order of the Assistant Registrar and to have set aside the same.
9. Lastly it is contended that in any view of the matter there being a bona fide dispute of continuance of an office bearer of a society as pointed out in the impugned order itself, namely, as to whether the petitioner No. 2 had tendered his resignation from the office of the president of the registered society or not, such a dispute could have been adjudicated upon in proceedings under Section 25(1) of the Societies Registration Act, 1860 and the Registrar was duty bound to refer the dispute for adjudication under the said section to the Prescribed Authority. In support of the said contention the petitioner has placed reliance upon the judgment of this Court reported in 2005 (1) AWC 580 : (Committee of Management Shaoul Uloom Educational Society, Karmaini, Azamgarh and Anr. v. Commissioner, Azamgarh Division, Azamgarh and Ors.) as well as upon the Division Bench judgment of this Court reported in 1994 (24) AIR 455 (Dr. Balram Bhutt and Ors. and Director of Higher Education, U.P. and Ors.) and AIR 1963 SC 1503, (V 50 C 220) (Roop Chand v. State of Punjab and Anr.).
10. On behalf of the respondents it is contended that the petitioner is guilty of suppression of material fact inasmuch as the petitioner had earlier filed an application supported by his own affidavit before this Court in Civil Revision No. 54 of 1997 (Sareveshwari Samooh and Ors. v. Baba Siddharth Gautam Ram) stating therein that he has resigned. However, in the said affidavit, which has been sworn on 27th May, 1998, there is no mention of the resignation having been withdrawn, subsequently. To the same effect an application has been filed by the petitioner before the Assistant Registrar, which has been enclosed as Annexure No. C.A.-4 to the counter affidavit. In Paragraph No. 4. of the supplementary affidavit filed on behalf of the respondent No. 5, it has been stated that the letter dated 24th November, 2003 issued by the Assistant Registrar was received by the respondent No. 5 only on 6th December, 2003 and therefore, he could not appear to lead his evidence before the Assistant Registrar. However, on 8th December, 2003 the respondent submitted his objection as well as other documents in respect of the elections pleaded by respondents dated 14th July, 2003. The Assistant Registrar while passing the order dated 22nd January, 2004 (A copy whereof has been enclosed as Annexure No. 12 to the writ petition) has deliberately not taken note of the aforesaid reply and the objections as well as of the documents filed by the respondent No. 5 and has wrongly stated that no reply has been filed by the respondent No. 5 in response thereto. It is further stated that the order dated 22nd January, 2004 is, as such, an illegal order, wherein the claim of the respondent No. 5 has not been taken note of despite the same having been brought on record before the Assistant Registrar. Therefore, no reliance can be placed upon the order of the Assistant Registrar by the respondent No. 5. It is further submitted on behalf of the respondents that the Assistant Registrar had himself transferred all the relevant records to the Registrar, Lucknow vide his letter dated 23rd April, 2004 for taking a decision in the matter. The petitioners took their chance before the Registrar and filed their written statements as well as necessary evidence in support of their claim, having lost before the Registrar, now for the first time the issue of jurisdiction is being raised in the present writ petition. In such circumstances, this Court may not permit the petitioners to raise such an issue. It is further submitted that if the petitioner is aggrieved by the order of the Registrar, Lucknow, whereby it has been held that the petitioner No. 2 has resigned from the office of the President, the petitioner can always initiate proceedings under Section 25(1) of the Societies Registration Act, 1860 or else he may file a Civil Suit.
11. I have heard learned counsel for the parties and have gone through the records.
12. From the facts as have been noticed hereinabove it is apparently clear that the order dated 22nd January, 2004 passed by the Assistant Registrar, Varanasi proceeded on misconception of fact that the respondent No. 5 has not led any evidence in support of elections pleaded by the said respondent and therefore, he proceeded to register the list of office bearers submitted by the petitioner. While from the record it is established that all the relevant papers including documents in support of alleged elections pleaded by the respondent No. 5 were very much available on records of the Assistant Registrar on the date he had passed the order dated 22nd January, 2004 inasmuch as under, letter of the Registrar, Lucknow dated 11th January, 2004, the reply of respondent No. 5 dated 8th December, 2003 along with necessary documents was forwarded to the Assistant Registrar for taking appropriate action in accordance with law. "The Assistant Registrar has not noticed the aforesaid order of the Registrar, Lucknow nor has noticed the documents filed on behalf of the respondent No. 5 while passing the order dated 22nd January, 2004. In such circumstances, the order passed by the Assistant Registrar dated 22nd January, 2004 cannot be said to be a valid order.
13. The issue, which still survives is as to whether the Registrar, Lucknow in such circumstances, could have interfered and could have upset the order passed by the Assistant Registrar dated 22th January, 2004. It is settled law that once the delegatee has exercised the power, it is the delegatee alone who can review/revise the same or recall the same. The Registrar, as such, could not have himself taken up the responsibility to decide the matter afresh only because the Assistant Registrar has transmitted the records to him under letter dated 23rd, April, 2004 for appropriate action. The legal position in that regard has been settled by the Hon'ble Supreme Court in the judgment reported in AIR 1963 SC 1503 Paras-11 & 12 (V SO C 220) (Roop Chand v. State of Punjab and Anr.) and it has been held as follows:
"The question then arises, when the Government delegates its power, for example to entertain and decide an appeal under Section 21(4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by Section 21(4). That section gives a power to the Government It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegate its power but such a power when Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government, It is of interest to observe here that Wills J. said in Huth v. Clarke, (1890) 25 Q.B.D. 391 that '"the word delegate means little more than an agent". An agent of course exercises no powers of his own but only the powers of his principal. Therefore an order passed by an officer on delegation to him under Section 41(1) of the power of the Government under Section 21(4), is for the purposes of the Act, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government ------ and of course it had to be one or the other------then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorized by the Act What is true of Section 21(4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under Section 41 (1). If we are wro ng in the view that we have taken, then in the case of an, order made by an officer as delegate of the Government's power under Section 21(4) we would have an appeal entertained and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done.
Again, if an order passed by an officer to whom a power had been delegated by the Government under Section 41(1) was an order passed by the officer, then an order made by an officer to whom power under Section 42 had been delegated would also be an order by an officer within the meaning of Section 42. That order would then be liable to be interfered with by the Government under Section 42 and if such interference is again not by the Government itself but by another officer as its delegate, then in that way the process of interference might be repeated for ever. Obviously an interpretation leading to such a result cannot be correct. It is of some interest to point out here that in the present case the order under Section 42, that is, the impugned order, had not been made by the Government itself but by the Director, Consolidation of Holdings, to whom the Governments power under that Section had been delegated."
14. In view of the aforesaid, once the Assistant Registrar has exercised power conferred upon the Assistant Registrar as a delegate under the Act, the Registrar lose a his powers of and he cannot sit in appeal or revision over the order passed by the Assistant Registrar. The order passed by the Registrar. Lucknow is legally not sustainable in the eyes of law. Even if the said order was passed with the consent of the parties, who participated in the proceedings, it is settled law that consent of the parties cannot confer a jurisdiction, not wasted upon the authority concerned. Therefore, if the petitioner has participated in the proceedings before the Registrar, Lucknow subsequent to the order passed by the Assistant Registrar dated 22nd January, 2004, it cannot be said that the Registrar had jurisdiction to sit in appeal/revision over the order passed by the Assistant Registrar dated 22nd January, 2004 and such the order passed by the Registrar, cannot be legally sustained. However, this Court cannot lose sight of the fact that, as to whether setting aside the order dated 3rd January, 2005 passed by the Registrar will have the effect of the restoring another illegal order passed by the Assistant Registrar dated 22nd January, 2004.
15. Even otherwise, in the opinion of the Court there is a serious dispute between the parties with regard to the fact as to whether the petitioner has tendered his resignation from the office of President of the registered society and therefore, lost a rights to constitute the office bearers. As a necessary corollary, which follows is as to whether Baba Sambhav Ram was appointed as the President and as such is entitled to constituted his office bearers as per the elections dated 14th July, 2003,. In the opinion of the Court [he dispute necessarily pertains to continuance of office bearers of he registered society. Such a dispute can be subject matter of adjudication under Section 25 (1) of the Societies Registration Act, 1860 and the Assistant Registrar or the Registrar has no jurisdiction to decide such a. dispute. The legal position has been settled in that regard by this Court in the judgment reported in 2005 (1) AWC 580 (Committee of Management Shaoul Uloom Educational Society, Karmaini, Azamgarh and Anr. v. Commissioner, Azamgarh Division, Azamgarh and Ors.).
16. In view of the aforesaid settled legal position neither the Assistant Registrar nor the Registrar had any authority of law to decide the controversy with regard to the dispute as to whether the petitioner No. 2 had tendered his resignation from the office of the President of the registered society or no as also as to whether he had a right to constitute the list of office bearers. Necessarily co-related to the aforesaid dispute is the claim of the respondent No. 5, Sri S.P. Singh, who claims to Have constituted set of office bearers on 14th July, 2003. All the issues can be gone into by the Prescribed Authority under Section 25(1) of the Societies Registration Act, 1860 only.
17. In such circumstances, this Court has no hesitation to hold that the orders dated 3rd January, 2005 passed by the Registrar, Firms, Societies and Chits, Lucknow and the dated 22nd January, 2004 passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi are patently illegal and unsustainable in the eyes of law and the dispute with regard to the valid office bearers can be decided in the facts of the case by the Prescribed Authority tinder Section 25(1) of the Societies Registration Act, 1860 only. It is accordingly directed that the Registrar, Firms, Societies and Chits, Varanasi shall transmit ail the records pertaining to the claim set up by the parities to the Prescribed Authority for deciding the dispute, within two weeks from the date a certified copy of this order is produced before the Registrar. The Prescribed Authority on the receipt of the said documents shall decide the dispute strictly in accordance with the registered bye-laws of the society and the provisions of the Societies Registration Act, 1860 after affording opportunity of hearing to the parties concerned by means of a reasoned speaking order, preferably, within six weeks from the date the records are received in the office of the Prescribed Authority . During this period neither the petitioner nor the respondents shall have any right to manage the affairs of the society. The Prescribed Authority after deciding the disputes aforesaid shall also issue consequential orders for control of the affairs of the society in accordance with law.
18. With the aforesaid directions the Writ petition stands disposed of.