Uttarakhand High Court
Om Prakash Arya vs State Of Uttarakhand And Others on 5 April, 2016
Bench: K.M. Joseph, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SPECIAL APPEAL No. 650 of 2015
Om Prakash Arya .....Appellant.
Versus
State of Uttarakhand and others. ......Respondents.
Mr. Rakesh Thapliyal, Advocate for the appellant.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / respondent nos. 1 and 2.
Mr. B.D. Upadhyay, Senior Advocate assisted by Mr. Vikas Pandey, Advocate for respondent no. 3.
&
SPECIAL APPEAL No. 653 of 2015
Arya Vidhya Sabha Gurukul Kangri .....Appellant.
Versus
State of Uttarakhand and others. ......Respondents.
Mr. B.D. Upadhyay, Senior Advocate assisted by Mr. Vikas Pandey, Advocate for the appellant.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / respondent nos. 1 and 2.
Mr. Rakesh Thapliyal, Advocate for respondent no. 4.
Dated: 05.04.2016
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble U.C. Dhyani, J.
K.M. JOSEPH, C.J. (Oral) Both the Appeals being connected, we are disposing of the same by a common judgment.
2. The Appeals arise out of Writ Petition (MS) No. 431 of 2015 (Arya Vidya Sabha through its Treasurer Dharmpal Arya vs. State of Uttarakhand and others). The writ petition had been filed by the appellant in Special Appeal No. 653 of 2015. The prayers sought in the writ petition by the petitioner were as follows:
"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.01.2015 passed by respondent no. 2 and contained as Annexure No. 1 to this writ petition.
ii) Issue a writ or order in the nature of mandamus directing the State Government to reconsider the matter in terms of order passed by the Hon'ble High Court in W.P. No. 663 (M/S) of 2014 and connected matter dated 2 10.09.2014 and decide the matter of renewal of society on the basis of the current list."
3. It appears that there is a Society, which is registered under the Societies Registration Act, 1860. The said Society was registered in the year 1986. It is running six educational institutions. There was certain dispute. It appears and this Court had an occasion to consider the matter in a bunch of writ petitions. The writ petitions were disposed of on 10.09.2014 by the following judgment:
"1. In all these writ petitions above, primarily each of the petitioners claim to be in effective control of a society known as "Arya Vidhya Sabha, Gurukul Kangri, Haridwar" with its earlier registration No. 10927(M). The above society was granted registration, for the first time, for a period of five year i.e. from 08.04.1986 to 08.04.1991 and the last renewal was on 08.04.2006 for a period of five years, which was expired on 08.04.2011. The renewal application of the petitioner (in WPMS No. 663 of 2014) is pending before the Sub Registrar, according to the petitioner the ground for not granting renewal are that matters pertaining to the Society, are pending before the High Court of Uttarakhand, therefore, the renewal cannot be granted. The other petitioners also claim to be in defacto control on the Society and they want a renewal of the Society in the name of their office bearers.
2. The case of the petitioner (in WPSS No. 663 of 2014) is that there are 45 members of the Society, who are registered as members of the Society. There are some outsiders trying to gain control of the society, and therefore, there is absolutely no question of the society name being renewed in their favour. On the other hand, the petitioner in WPMS No. 1309 of 2011 would argue that the society has nine representatives of Haryana, Punjab and Delhi and they are the members of the society.
3. These are the claims and counter claims before this Court. The matter involves appreciation of disputed question of fact. Moreover, essentially these matters come up before this Court, as the renewal of the society was not being given by the Sub-Registrar. All these matters can be looked into by the State Government in view of Section 3-B of the Society Registration Act, which reads as under:-
"3-B Reference to the State Government- If any question arises whether any society is entitled to get relief registered in accordance with Section 3 or to get its certificate of registration renewed in 3 accordance with Section 3-A, the matter shall be referred to the State Government, and the decision of the State Government thereon shall be final."
4. Under the aforesaid provision "matter can be referred to the State Government where a question arises as to whether a society is entitled to get its registration, in accordance with Section 3-B of the Societies Registration Act or to get its renewal under Section 3-A of the Societies Registration Act."
5. Considering the above provision, the matter is referred to the State Government which shall be decided by the concerned Secretary of the Government of Uttarakhand within a period of four months from the date of production of a certified copy of this order. However, it is made clear that if the concerned Secretary comes to the conclusion that the matter involves other than what would be a simple renewal or registration, he would be at liberty to ask the parties to adjudicate the dispute before a competent court of Civil jurisdiction. However, this may only be done after passing speaking order and hearing all the parties concerned.
6. With the aforesaid observation, the writ petition is disposed of.
7. It is to be noted that once the registration of a society is held normally it should be renewed unless there are compelling reasons to deny such a renewal. Though an application of renewal is there before the Sub- Registrar, but it appears because of the pendency of these matters before this Court, he has not been able to take a decision. Since all these writ petitions have been sent to the State Government, interim orders, if any, passed in all the writ petitions are hereby vacated."
4. It appears that the State Government, instead of taking the decision as was directed, made over the case to the Registrar under the Societies Registration Act, 1860. The Registrar, in turn, issued notices to the parties and purported to pass the impugned order. The learned Single Judge took the view that having regard to the directions given by the Coordinate Bench, the order of the Registrar would not be sustained and has instead directed the Government, as was directed earlier in the judgment, which we have extracted in this judgment. Furthermore, taking note of the fact that the educational institutions are being run, the receivers, who had been appointed earlier, were asked to continue till a decision is taken.
45. According to the learned Single Judge, the Secretary of the Government has not only defied the orders of the Court but he has also violated the provisions of Section 3-B of the Act, wherefor with a view of drawing his attention, the matter was referred to him for taking a decision. It is also noticed by the learned Single Judge that instead of Registrar, the matter was decided by the Assistant Registrar. It was a mockery of the law and the learned Single Judge directed the Government to reconsider the matter in terms of the order of the learned Single Judge of this Court. The learned Single Judge issued various directions in regard to the Receiver. It is feeling aggrieved by the order relating to the appointment of the Receiver that Special Appeal No. 653 of 2015 is filed; whereas Special Appeal No. 650 of 2015 is filed by the party respondent in the writ petition, who is represented by Sri Rakesh Thapliyal.
6. We heard the learned counsel for the appellant in Special Appeal No. 653 of 2015 Sri Rakesh Thapliyal, learned Senior Counsel Sri B.D. Upadhyay appearing on behalf of the appellant in Special Appeal No. 650 of 2015 and learned Standing Counsel also on behalf of the State.
7. Sri Rakesh Thapliyal would point out that the learned Single Judge was in error both in the matter of interfering with the order passed by the Assistant Registrar and directing reconsideration by the Secretary of the Government. He would point out that when the matter went to the Government pursuant to the directions given in the earlier round of litigation, the Government thought it fit to have the matter decided by the Registrar. In this regard, he drew our attention to the provisions of Section 3-A of the Societies Registration Act. He would submit that the Application for renewal of the Society was pending before the Registrar and a decision has been taken under the said provision. It is, no doubt, true that the Registrar has handed it over to the Assistant Registrar. He would submit that when the hearing took place, no grievance was made out by the writ petitioner that it involved an infraction of the directions contained in the earlier round of litigation. It appears to us that the argument is based on the 5 doctrine of acquiescence. Having courted the order, which went against them, it does not lie in their mouth to turn around and seek shelter under the earlier direction that the Government should decide the matter. In this connection, it is pointed out that the writ petitioner has not thought it even fit to challenge the order passed by the Government, by which the matter was made over to the Registrar. Therefore, in the teeth of the undisputed facts, as aforesaid, learned single Judge was in error in giving direction to the Government to consider the matter.
7. Sri Rakesh Thapliyal also raises complaint against the continuance of the Receiver having regard to the heavy financial burden, the Societies are exposed to.
8. Per contra, the learned Senior Counsel would support the order, except to the extent of continuance of the Receiver.
9. We perused the impugned order passed. The English version of the said order reads as follows:
"O/o The Nibandhak (Registrar), Firms Societies & Chits, 3/23, Shastri Nagar, Haridwar Road, Dehradun.
Office Circular Letter No. /ni.ph.so.chi. /Dehradun Dtd: 23 Jan, 2015 Subject: Complying with the order passed by the Hon'ble High Court Nainital, dated 10-09-2014, in the context of Writ Petition No. 663 of 2014, Writ Petition No. 1209 of 2011, Writ Petition No. 1309 of 2011, Writ Petition No. 42 of 2012 and Writ Petition No. 1709 of 2014, disposing-off the matter of Arya Vidhya Sabha, Gurukul Kangri, Haridwar vide administration order No. 890 / XXVII(6)/2014, finance section -6, dated 05 November, 2014. Hon'ble High Court Nainital vide its order dated 10-09-2014 in context of the above mentioned writ-petitions has directed that:-
"Considering the above provision, the matter is referred to the State Government, which shall be Decided by the concerned Secretary of the Government of Uttarakhand within a period of four months, from the date of production of a certified copy of this order. However, it is made clear that if the concerned Secretary comes to the conclusion that the matter involves other than what would be a simple renewal or registration, he would be at liberty to ask the parties to adjudicate the dispute before a competent court of Civil Jurisdiction. However, this may only be done after passing speaking order and hearing all the parties concerned."6
To comply with the above mentioned order, Uttarakhand Administration has vide it's administration Order No. 890/XXVII(6)/2014, finance section-6, dated 05 November 2014, examined the matter as per the rules, and has directed the Nibandhak ("Registrar"), Firms Societies & Chits Dehradun, to act accordingly.
As per the above mentioned order, hearing dates for the concerned parties were fixed as below:
--Vide it's letter No. 2993 dated 30 Dec 2014, for the first concerned party Shree Omprakash Arya, date of 15 Jan 2014 at 11:00 A.M.
--Vide it's letter No. 2994 dated 30 Dec 2014, for the second concerned party Shree Dharampal Arya, date of 15 Jan 2014 at 03:00 PM.
--Vide it's letter No. 2995 and 2995A dated 30th Dec 2014, for the third and fourth concerned party Shree Vedvrat Sharma and Shree Swatantra Kumar, date of 17 Jan 2014 at 11:00 A.M. After the hearing of all concerned parties on 15-01-2015 and 17-01-2015, their written submissions and verbal submissions were examined. After the examination, it was found that all the concerned parties as below:
--Shree Omprakash Arya's submission dated 15-01-2015, through his authorized representative Dr. Dinanath Sharma,
--Shree Dharampal Arya's submission dated 15-01-2015,
--Shree Vedvrat Sharma's written submission dated 12-01- 2015 which was received through registered post by this office on 15-01-2015, Have assented and provided their respective consents for the renewal of Arya Vidhya Sabha, Gurukul Kangri Haridwar letter No. 10927M, Registration No. 29/1986 under Section 3-A of the Societies Registration Act, 1860. The fourth concerned party, Shree Swatantra Kumar, on the date fixed for his hearing on 17-01-2015, neither came in person, nor sent any written submission or answer through post. Hence, it was assumed by the department that he does not wish to say anything in the matter of the Registration / Renewal of the Society. Consequently, for the Renewal of this Society, no dispute was found between the concerned parties.
Under section 3(kh) of the Societies Registration Act, 1860, there is a provision for any question raised that whether a Society under section 3 is eligible to get itself registered, or that whether a Society under section 3A is eligible to get itself Renewed.
Under the section 3 of this act, it is very clearly mentioned under sections 3(2)(ka) and 3(2)(kh) part, that such a Society can not be registered which has a similar sounding name as that of an existing registered Society, and hence may confuse the ordinary public. Hence, Registration of a new Society under the similar name as that of an already 7 Registered society will be in contravention of the above mentioned sections of the Act. On this subject, in the past, on 04-02-2014, D.G.C. Civil Haridwar also opined that Arya Vidhya Sabha, Gurukul Kangri Haridwar can be renewed using as base, the already registered list for 2005- 06 under the last order of the Hon'ble High Court. The above mentioned order of Hon'ble High Court dated 10-
09-2014 has been presented to the Uttarakhand Govt. Dehradun on 29-09-2014. In the above mentioned Oder dated 10-09-2014, the fixed time limit of Four-months is going to expire on 28 Jan 2015.
After hearing all the concerned parties and examination of their written submissions, in compliance with the orders of the Hon'ble High Court, it is decided that the Society Arya Vidhya Sabha, Gurukul Kangri Haridwar letter No. 10927M, Registration No. 29/1986 be renewed under the section 3A of the Societies Registration Act, 1860. In light of the facts as mentioned above and within the time limit of the fixed four months, keeping in view our commitment to honour the orders of the Hon'ble High Court, in the matter under question, taking as base the already registered list for 2005-06, the Society Arya Vidhya Sabha, Gurukul Kangri Haridwar is being renewed herewith, under the section 3A of the Societies Registration Act, 1860, and the matter disposed off from the level of the head office.
(V.V. Dhyani) Sahayak Nibandhak ("Assistant Registrar") On behalf of the Nibandhak ("The Registrar") Letter No. 3263c/ni.ph.spre.chi. /Dehradun Dated 23 Jan, 2015"
10. Learned Senior Counsel appearing on behalf of the writ petitioner would, in fact, point out that a perusal of the order, in its concluding portion, shows that what the Assistant Registrar has done is that the Assistant Registrar has proceeded on the basis of the membership as it obtained in the year 2005-2006. This, according to him, is not legal having regard to the changes brought about after 2005-2006 by way of addition to the membership, and this is the substance of the complaint.
11. On the other hand, Sri Thapliyal would point out that the Court may note that actually the writ petitioner is a person, who has 8 no locus as he would submit that the pleadings of the State itself would show that they have not become primary members of the Society, and he would point out that this was not denied.
12. We would think that the order, which is impugned, does not reflect any of the arguments. We would think that a perusal of the order would reveal that the officer apparently was faced with the order of the High Court, as per which, four months' time was granted and the time was running out. Reading of the concluding part, which we have noticed, does not reveal any reasons being given, nor there is any reference to any of the contentions of the parties, even though there is reference to the parties being heard and the arguments being advanced.
13. When the matter is contested and arguments are addressed, it is the bounden duty of the Authority, particularly when a direction was originally issued to the State Government and the State Government had made it over to the statutory Authority (apparently treating him as an Authority under Section 3-A of the Societies Registration Act, 1860) to give reasons for the order after setting out the contentions of the parties.
14. Having regard to the fact that the writ petitioner himself did not challenge the order of the Government, by which the matter was made over to the Authority under Section 3-A of the Societies Registration Act, 1860 and also the fact that he has acquiesced in the proceedings, we would think that the writ petitioner may not be justified in laying store by the earlier judgment of this Court, by which the matter stood referred to the Government under Section 3-B of the Societies Registration Act, 1860; the writ petitioner had clearly participated. It is after the decision, when it went against them, we would think that the appellant in Special Appeal No. 650 of 2015 is justified in his contentions in this regard that the writ petitioner gambled for a favourable decision, which went against it, it turned around and challenged the order. We would think that the Registrar of the Society shall look into the matter after affording an opportunity of hearing to the parties and pass an order, wherein the arguments, as urged, would be considered and the decision is taken in accordance 9 with law. As far as the question relating to Receiver is concerned, we have already passed an interim order, by which Receiver has been directed to hand over the charge to the Chief Education Officer. That order is already being implemented. We see no reason, why we should not make the said order absolute. Accordingly, the Appeals are disposed of as follows:
. The interim order, which we have passed in regard to the Receiver dated 07.01.2016, is made absolute. The Chief Education Officer will continue as Incharge of the administration. We set aside the direction of the learned Single Judge, by which the Secretary, Government was directed to take a decision in the matter. Instead, we direct that the Registrar of the Societies under the Societies Registration Act, 1860 will himself afford an opportunity of hearing to the parties and take a decision in the matter necessarily totally untrammeled by anything contained in the impugned order. In order that the matter is expedited, the parties agree that they will appear before the Registrar, Societies, Dehradun at 11:00 AM on 18th April, 2016. He will proceed to afford them an opportunity of hearing and take a decision in the matter in accordance with law within a period of three weeks from 18th April, 2016. We set aside the impugned order passed by the Assistant Registrar. The Appeals are allowed as above. No order as to costs.
15. Needless to say, the interim order by which we have directed the Secretary to pass order and produce it in sealed cover, will stand recalled.
(U.C. Dhyani, J.) (K.M. Joseph, C.J.)
05.04.2016 05.04.2016
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