Allahabad High Court
Shahabuddin Khan And 6 Others vs Deputy Registrar Firms,Societies ... on 15 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- WRIT - C No. - 3777 of 2022 Petitioner :- Shahabuddin Khan And 6 Others Respondent :- Deputy Registrar Firms,Societies Ayodhya And Chits And 4 Others Counsel for Petitioner :- Virendra Mishra,Shradha Mishra Counsel for Respondent :- C.S.C.,Mahendra Bahadur Singh,Vikas Singh Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Virendra Mishra, Advocate, the learned Counsel for the petitioners and Sri Mahendra Bahadur Singh, Advocate, the learned counsel for the opposite party No. 3.
2. By means of the instant writ petition, the petitioners have challenged the validity of an order dated 31.05.2022 passed by the Deputy Registrar Firms, Societies and Chits, Ayodhya Region, Ayodhya (hereinafter referred to as "Deputy Registrar") rejecting the objection submitted by the petitioner No. 1 and some other persons as also the objections submitted by the opposite party No. 4, and has declared the final list of members of the General Body of the Society "Madarsa Jamia Warsiya Miswahul Uloom, Barabanki (whichwill hereinafter be referred to as "the Society")" and has also declared the program of the elections to elect the Committee of Management of the Society.
3. Shri Mahendra Bahadur Singh has filed a short counter affidavit on behalf of the opposite party No. 3 raising preliminary objections against the maintainability of the writ petition on the ground that the election process has already commenced with declaration of the election program and once the election process has started, the same should be allowed to reach to is logical end and this Court should refrain from interfering in the election at this stage. In case any person is aggrieved by such election, he may file an Election Petition under Section 25 (2) of the Societies Registration Act, 1860 after declaration of the result of the elections and, therefore, the present writ petition is not maintainable. Another objection raised by Sri Singh is that the Society has not been impleaded in the writ petition and therefore, the writ petition suffers from defects of non-joinder of the necessary parties.
4. Sri Singh has placed reliance upon the case in Basant Prasad Srivastava vs. State of U.P. reported in AIR 1994 Allahabad 112 where the Division Bench has held as follows:-
"7. In our opinion the judgment of the learned single Judge does not suffer from any infirmity. The election process having started it must come to its logical conclusion. Once it has to its logical conclusion by declaration of result of the election the aggrieved person may challenge the election by filing election petition or civil suit in accordance with law. In such a proceeding the election may not be set aside if the alleged illegality or irregularity has not materially affected the result of the election. Approach to Court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. Neither is a happy situation. It is, therefore, desirable that the election process should end as early as possible and the declaration of result should not be deferred through repeated interim orders passed from time to time. In taking this view we have the support of authorities which may be immediately noticed."
5. He has placed reliance on a judgment of this Court in Fahim Ahmad and another Vs. State of U.P. and others, 2006 (24) LCD 1078, in which, this Court has held as follows:-
"35. In view of above, to sum up: (1) Since, the petitioners have got alternative remedy to challenge the outcome of the election in accordance to the provisions contained in the Societies Registration Act and rules framed thereunder, the Writ Petition No. 1446 (M/S)/ 2006 is not maintainable. It is a settled law that whenever the election process is initiated, ordinarily. High Court should not exercise extraordinary jurisdiction of Article 226 of the Constitution of India to interfere with the election process. The election process includes the preparation of electoral roll. It is the further settled law that ordinarily a writ petition should not be entertained not only after initiation of election process but also after declaration of the election result, in case, an alternative statutory remedy is available to an aggrieved party to challenge the outcome of the result of the election by preferring an election petition or by any other method provided under the Act or Statute. (2) The Deputy Registrar of the region or district discharges duties in pursuance to the delegation of the power provided under Section 21 of the Act by the State Government. Once, the election process was initiated by the Deputy Registrar by finalizing the electoral roll then the Registrar, Firms, Societies and Chits was having no jurisdiction to interfere with such election process. The Deputy Registrar or the Assistant Registrar of the respective regions or districts discharges the delegated duties of the Registrar conferred by the State Government. The Registrar has got no power to withdraw such rights or interfere with such duties assigned to the Deputy Registrar or the Assistant Registrar by the State Government."
6. Another decision relied upon by the learned counsel for the opposite party No. 3 in the case of Committee of Management, Maharana Pratap Vidyalaya Prabandh Samiti, Bhadwara, Kanpur and another vs. State of U.P. and others reported in 2013 (10) ADJ 532, wherein the Division Bench of this Court held as follows:-
"9. In order to avoid a large number of writ petitions filed for quashing the orders passed by the educational authorities during the process of elections and in seeking directions to them, we hereby declare that the principles of law laid down by the Supreme Court in N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64; Harcharan Singh v. Mohinder Singh & Ors., AIR 1968 SC 1500; Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, AIR 1978 SC 851; Jyoti Basu & Ors. v. Debi Ghosal & Ors., AIR 1982 SC 983; Harikrishna Lal v. Babu Lal Marandi, (2003) 8 SCC 613 and Shyamdeo Pd. Singh v. Naval Kishore Yadav, (2000) 8 SCC 46 restraining the courts from interfering in the process of election after the elections are notified is equally applicable to the elections of the office bearers of the committee of management of the societies as well as the Committee of Management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. The principles of law that the Courts should keep their hand off in electoral matters and that all election disputes must be tried by the Election Tribunal, is also incorporated in the Constitution of India under Art.329 (b) for the elections of the Parliament or to the house or either house of the legislature, under Art.243 O for the elections of Panchayats and Art.243 ZG in the matter of elections of the municipalities.
10. There is no reason as to why these time tested and settled principles should not be made applicable to the elections of the office bearers of the societies and for the Committee of Management under the scheme of administration of the educational institutions. "
7. Relying on the law laid down in the aforesaid judgment, the submission of Sri Singh is that as the election process has already commenced by declaring election program by means of the impugned order dated 31.05.2022, the writ petition filed challenging the same is not maintainable and if the petitioner is aggrieved, he may seek remedy for redressal of their grievances by challenging the elections after completion thereof.
8. Replying to the aforesaid preliminary objection Sri Virendra Mishra, the learned counsel for the petitioners, has submitted that there is no absolute bar against entertaining a writ petition after commencement of the election process. In support of his submission, he has placed reliance rendered by a Division Bench of this Court in the case of Banwari Lal Kanchal Vs. Bhartendu Agarwal and Others reported in 2019 (12) ADJ 235 (DB) (LB) in which the following questions had been formulated for decision. Answering the aforesaid question, this Court held that:-
"66: On perusal of the controversy involved in the present special appeals, there are three questions to be considered by this Court, which are as follows :-
(i) Whether the election process commenced with the finalization of electoral college can be challenged in a writ jurisdiction under Article 226 of Constitution of India ?
(ii) Whether an individual member has locus to challenge the election process or the result thereof ?
(iii) Whether this Court in exercise of power under Article 226 of Constitution of India can examine the disputed question of facts in regard to induction of members of general body of the society or not ?
70: We have examined the judgments relied upon by the learned counsel for the appellant in regard to the maintainability of writ petition of initiation of election process by finalizing the electoral college. The law is very much settled that the writ petition under Article 226 of the Constitution of India to interfere in the election process, ordinarily is not maintainable when there are disputed question of facts and the remedy is to avail civil suit after holding of election. We are with the full agreement that ordinarily election process should not be interfered with, but in the facts and circumstances of the present case, the learned Single Judge has recorded finding that the appellant-respondent has not been enrolled as member as the provision contained under the registered bye-laws laws of the society. If the members who have been permitted to participate in the election found their induction to be in utter disregard of the provisions contained under the registered bye-laws of the society and they are not able to establish their induction in consonance with the provisions of the bye-laws, it is always open to this Court in exercise of discretionary power under Article 226 of the Constitution of India to examine the issue of membership and holding of election on the basis of members who are not legally enrolled as members.
71: In view of the provisions contained under the registered bye-laws of the society and in absence of material to establish their induction as members, we are with the full agreement of the finding returned by the learned Single Judge in this regard. We further hold that the electoral college is the essence of an election. The Deputy Registrar without considering the provisions contained under the registered bye-laws of the society, has proceeded to hold four members to be valid members of the general body of the society, therefore, the finding returned in this regard is perverse in nature and contrary to the provisions contained under the registered bye-laws of the society. Once this Court, upon consideration of the point, came to conclusion that members who are going to participate in the forthcoming election are not legally enrolled members, it is open to this Court to interfere in the election process, if the finalization of members who have to participate in the election is found to be not in consonance with the provisions of the registered bye-laws of the society. "
9. Sri Mishra has further placed reliance on another Division Bench Judgment of this Court in the case of Vishwabandhu Gupta Vs. Returning Officer, 1990 (8) LCD 558 in which the Division Bench held as follows:
" 10. Thus there is neither any constitutional bar like the one in Article 320 of the Constitution or absolute bar due to availability of remedy to challenge election under the Act to entertain a petition under Article 226 of the Constitution once the election process of a local body has commenced. Except that the circumstances warranting interference should be extraordinary. From what has been narrated earlier there can be no doubt that the order being manifestly erroneous resulting in depriving petitioner from contesting the election which is sine qua non of democratic process a situation has arised in which it is just and proper for this Court to interfere in exercise of power under Article 226 of the Constitution.
11. "By removing the order such as the impugned one the Court shall not be interfering with election process but enabling it to proceed in accordance with law. Although wrong rejection of a nomination paper or incorrect inclusion is specific ground in clause (b) of Section 43-B of Municipal Act in which election petition can be filed but unlike clause (c) the vitiation of election does not depend on its being materially effected as was the case in Nanhoo Mal's (supra). Since improper rejection of nomination nullifies the election the petitioner cannot be debarred from invoking extraordinary jurisdiction of this Court in view of facts stated above because he has an alternative remedy by way of election petition."
10. The learned counsel for the petitioners has placed reliance on a decision rendered by a Coordinate Bench of this Court in Jagdamba Pandey Vs. State of U.P. 2019 (8) ADJ 536 in which it was held that:-
"The availability of alternative remedy is not an absolute bar but is a self imposed restriction by the High Court and in a case where illegality has been committed and arbitrariness is writ large on the face of the record, the High Court can pass appropriate orders to enforce the Rule of Law."
11. Taking into consideration law laid down by this Court from the various judgments cited by the learned counsel for the parties, the position which emerges is that although there is no absolute bar against invoking this Court's jurisdiction under Article 226 of the Constitution of India for issuance of a Writ affecting the election process after its commencement, it depends upon the facts of each case, whether the same makes out an exceptional case so as to warrant interference by this Court or not.
12. Therefore, I proceed to scrutinize pleas raised by the learned Counsel for the parties.
13. The learned counsel for the petitioners has submitted that bye-laws of the society provides that there will be three types of members: -
(i) Life Members - who will deposit Rs.1001/- or more or movable or immovable property worth the aforesaid amount will be life member of the society.
(ii) Special Members - who will deposit Rs.501/- or more or movable or immovable property worth the aforesaid amount will be special member of the society.
(iii) Ordinary Members - persons who will pay Rs.51/-only as an annual membership fees will be ordinary members.
14. The bye-laws further provide that general body will consist all types of members of society and the managing committee will be constituted by election from amongst the members of the general body and it will consist of a manager, deputy manager, chairman, vice president, secretary, deputy secretary, treasurer and 17 members. Thus, the managing committee will consist of 24 persons. The statement made on behalf of the petitioners is that on 23.02.2021, the Deputy Registrar has passed an order issuing a tentative list of valid members of the society. The letter states that the committee of management of society is declared to have become time barred w.e.f. 03.04.2018 and the list of 24 members of the general body of the society declared by means of an order dated 12.08.2011 is being published as the tentative list of the members.
15. Objections were invited against the tentative list of members of the Society up to 23.03.2021. On 09.03.2021, the petitioners filed objections against aforesaid tentative list that in the tentative list published along with letter dated 23.03.2021, the names of the special members have not been included amongst the members of the general body of the society, whereas in response to information sought under the Right to Information Act, it was informed that the special members are also entitled to participate in the elections.
16. The petitioners challenged the aforesaid order dated 23.02.2021 by filing Writ Petition No. 9298 (M/S) of 2021, which was disposed of by means of an order dated 26.03.2021 passed by this Court with a direction to the opposite party no.2 to consider the objections of the petitioners also while taking a decision on the tentative list of the members in accordance with law.
17. Thereafter, the Deputy Registrar has passed the impugned order dated 31.05.2022 declaring the list of 20 members of the General Body which does not include the names of the petitioners. The Deputy Registrar has rejected the objections of the petitioners and has deleted the names of four members namely Abrar Ahmad, Sri Nankau, Sri Feeda Ali and Mohd. Niyaz Khan from the tentative list of the members for the reason that the aforesaid persons are no more and list of remaining 20 members of the General Body has been declared as valid list of members.
18. The list of 20 members of the General Body, which had been published by the Deputy Registrar as tentative list of members and which form basis for declaring the final list of members, had been finalized by the Deputy Registrar in the order dated 12.08.2011 passed in proceedings under Section 25 (2) of the Societies Registration Act. The petitioners have challenged the aforesaid order dated 12.08.2011 in Writ Petition No. 5389 (M/S) of 2011 and it is also under challenge in Writ Petition No. 5447 (M/S) of 2011 and although both the aforesaid writ petitions challenging the order dated 12.08.2011 are still pending, but there is no interim order staying the operation of the order dated 12.08.2011.
19. Elections were held in the year 2013 on the basis of the aforesaid list declared by means of an order dated 12.08.2011. The aforesaid elections were challenged in Writ Petition No. 7853 (M/S) of 2013, in which an interim order was passed on 29.11.2013 and this Court made the following observations in the aforesaid interim order:
"Petitioner says that no election was held on 3.4.2013. Petitioner has drawn the attention of this Court towards annexure No.4 by which the Deputy Registrar, Faizabad has appointed the District Minority Welfare Officer, District Barabanki as election officer vide his order dated 12.8.2011. The petitioner has been able to demonstrate vide annexure No.1 that the alleged election has been held by the Waqf Inspector Sri Ahmad Khan. His signatures are available on page 17 of the writ petition under the stamp of Nirvachan Adhikari/Zila Alpasankhyak Kalyan Adhikari, Barabanki. The signature of Sri Ahmad Khan, Waqf Inspector tallies with annexure No.2 on page 19 and 39 where his signatures are available. There is do doubt about the signatures of the Waqf Inspector Sri Ahmad Khan. It is very evident that the Waqf Inspector was never nominated as the election officer. The District Minority Welfare Officer was delegated the powers by the Deputy Registrar. This power could not have been sub-delegated to the Waqf Inspector by the election officer, as such, the proceedings are bad in law and appear to be fake in fact also.
Let counter affidavit be filed within four weeks. Rejoinder affidavit may be filed within a week after that. List thereafter.
Meanwhile, operation and implementation of the order dated 3.4.2013 as contained in annexure No.1 and the order dated 30.8.2013 as contained in annexure No.2 to the writ petition, shall remain stayed. "
20. The Writ Petition No. 22630 (M/S) of 2017 was filed by the opposite party no.3 contending that certain members have been expelled from the Society and the said proposal is pending consideration before the Deputy Registrar. Another Writ Petition No. 15929 (M/S) of 2018 was filed by the opposite party no.4 with similar allegations and this too was disposed of by means of an order dated 06.07.2018 with similar directions.
21. The learned counsel for the petitioners has submitted that the Committee of Management consists of 24 persons for whose elections the Deputy Registrar has finalized a list of more than 20 persons and he has not included the special members of the Society amongst the voters which renders the proposed elections meaningless.
22. On the other hand Sri M.B. Singh, the learned counsel representing the opposite party no. 3 has submitted that the petitioners were not included in the list of valid members finalized by the Deputy Registrar by means of an order dated 12.08.2011 passed under Section 25 (2) of the Societies Registration Act and the petitioners have not challenged the aforesaid order dated 12.08.2011. He submits that in the order dated 23.02.2021 passed by the Deputy Registrar in furtherance of the direction issued by this Court by means of order dated 03.04.2018 passed in Writ Petition No. 22630 (M/S) of 2017. The Deputy Registrar declared a tentative list of members of the General Body of the Society consisting of 24 members which were held to be valid members in the order dated 12.08.2011 passed by the Deputy Registrar under Section 25 (2) of the Societies Registration Act.
23. Based on the aforesaid facts, Sri M.B. Singh has submitted that as the petitioners have not challenged the aforesaid order dated 12.08.2021, whereby their names were excluded from the list of members finalized by the Deputy Registrar while passing order under Section 25 (2) of the Societies Registration Act. The instant writ petition claims a relief which runs contrary to the aforesaid findings recorded in the order dated 12.08.2011, cannot be entertained.
24. Considering the submission made by the counsels for the contesting parties, I find that this Court cannot record finding regarding the petitioners being special members of the Society as their names were not included in the list of members finalized by the Deputy Registrar in the order dated 12.08.2011 which was passed under Section 25 (2) of the Societies Registration Act.
25. The elections are scheduled to be held tomorrow i.e. on 16.06.2022, it will be open to the petitioners to raise their claim in an appropriate proceedings challenging the elections and claiming a declaration regarding their membership status.
26. The writ petition lacks merit and is hereby dismissed.
Order Date :- 15.6.2022 Jaswant