Allahabad High Court
Committee Of Management, Shri Swami ... vs Assistant Registrar, Firms Societies ... on 18 February, 2008
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard Sri I.R. Singh, learned Counsel for the petitioner and Sri V.K. Singh learned Counsel for the respondents and learned Standing Counsel.
This petitioner has been filed for quashing for the impugned order dated 22.2.2007 and 23.3.2007 passed by respondents No. 1 and 2 as contained in annexure 5 and 6 to the writ petition.
2. By an order dated 22.2.2007, Assistant Registrar, Firms, Societies and Chits, Varanasi has informed Sri Suryabali/Manager of the Committee of Management that the list of officer bearers of the society for the year 2006-07. Sri Suryabali has been registered. Whereas by the second impugned order dated 23.3.2007 the DIOS Jaunpur has accorded approval to the Committee of Management headed by Sri Kailash Nath as President and Sri Suryabali as Manager of Sri Swami Gokulanand, Purvamadhyamik Vidyalaya, Shivrhia (Belwar) Jaunpur on the basis of the approved the list of the office bearers of the society for departmental work as per order dated 22.02.2007 above. The impugned orders are appended as annexure Nos. 5 and 6 to the writ petition.
Further, a writ of mandamus has been sought for restraining the respondents from interfering in the functioning of the petitioners in pursuance of aforesaid impugned orders.
At the time of admission the Court on 2.4.2005 passed following ad interim orders:
Till the next date of listing the operation of the order dated 22.2.2007 passed by the Assistant Registrar, Firms, Societies and Chits as well as the consequential order dated 23.3.2007 passed by the District Basic Education Officer, Jaunpur shall remain stayed.
This petition has thereafter come up before this Court.
3. Counter affidavit has been filed file by respondents No. 4 and 5 and petitioner has also filed rejoinder affidavit.
4. The learned Counsel for the petitioner has assailed the impugned order on the ground that (1) no notice or opportunity had been given to the petitioner as requires under Section 4 of the Registration Societies Act, 1860 before registering a new members. The list of the new members submitted by the office bearers, (2) the Order passed by the Assistant Registrar as well as BSA is without jurisdiction and (3) the orders could not contain any reason.
5. The contention of the learned Counsel for the respondents in the counter affidavit is that term of society is three years whereas it is being rebutted by the petitioner in the rejoinder affidavit inter-alia no term has been provided in the bye-laws and the society.
6. It is urged by him that by precedent the election of the society taken place every five years. The copy of the bye-laws has also appended with the rejoinder affidavit as RA-1 which shows that there is no term of Committee of Management though there is specific term of Committee of Management. Therefore in the circumstances the contention of the petitioner that elections of the society held every five years are acceptable. For the reason that if any interpretation given to the bye-laws members of the society would therefore elected without holding any election, which would be against the democratic norms and the intention of the society, which requires democratic elected members periodically.
7. It is submitted by the learned Counsel for the petitioner Sri I.R. Singh that an order without any reason cannot be supplemented by any counter affidavit or rejoinder affidavit and has to be taken in the same form. He also relied upon the paragraph 8 of the AIR SC 857 Mohinder Singh Gill v. Election commissioner.
8. Sri I.R. Singh, learned Counsel for the petitioner has also placed reliance ; State of Orissa v. Dhaniram Luhar 2004(5) SCC 568 wherein 6 and 8 it has been observed that:
the trial court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re -appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial. The effect of the admission of the accused in the background of testimony of official witnesses and the documents exhibited needed adjudication in appeal. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set for this reasons, howsoever brief in its order, indicative of an application of its mind ; all the more when. its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable. Similar view was expressed in State of U.P. v. Battan. About two decades back in State of Maharashtra v. Vithal Rao Pritriao Chawan the desirability of a speaking order while dealing with an application for grant of leave was highlighted. The requirement of indicating reasons in such cases has been judicially recognised as imperative. The view was reiterated in Jawahar Lal Singh v. Naresh Singh. Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by an authority or court, be it even the highest court in a State, obvious to Article 141 of the Constitution.
8- even in respect of administrative orders Lord Dening, M.R. Breen v. Amalgamated Engg. Union observed ; "The giving of reasons is one of the fundamentals of good administration." In Alexandr Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system ; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made ; in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
9. Sri V.K. Singh learned Counsel for the respondents then submits that notices had also been issued to the petitioner as well as other office bearers of the society, which are appended as annexure No. CA-4 to the counter affidavit and that the order impugned is not without jurisdiction or without any reason.
10. From a perusal of the record it is apparent that various allegations have been made against the petitioners regarding appointment of kith and kin of the office bearers in the institution which have though been denied by the petitioner in detail and it has been stated that office bearers, who are said to have appointed their kiths and kins or the office bearers were not in office when their relatives are said to have been appointed therefore it cannot be said that the office bearers had misused their office.
11. There is another factual dispute regarding holding of an election meetings, which are said to have been held on 24.9.2006 wherein it is alleged that members made a complaint that the office bearers have fabricated documents : that no confidence motion was passed against the President, Manager, Treasurer and three members in the meeting said to have been held on 10.11.2006 and that in the meeting dated 20.11.2006 convened the governing body resolved for holding fresh election of the office bearers for the remaining terms.
12. As regards the list of managing body and its submission annually alongwith other relevant records pursuance of the provisions as provided under Section 4(1) of the Registration Societies Act, 1860 is concerned it is stated that the list could not have been accepted as it had not been signed by the erstwhile outgoing office bearers of the society and is a nullity. Section 4(1) for ready reference is quoted as under:
4 Annual list of managing body to be filed- (1) once in every year, on or before the fourteenth day succeeding the day which, according to the rules of the society, the annual general meeting in the month of January, a list shall be filed with the (Registrar), or the names, addresses and occupations of the governors, council, directors committee, or other governing body then entrusted with the management of the affairs of the society;
Provided that if the managing body is elected after the last submission of the list, the counter signatures of the old members shall, as far as possible, be obtained on the list. If the old office bearers do not counter-signed the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide the objections received within the said period.
13. It is apparent from the aforesaid provision that erstwhile office bearers may not countersign the fresh list of elected members as such their counter signature may be obtained as far as possible but in case they do not countersign, it is discretion of the Registrar to issue public notice or notice to such persons as he thinks fit not for inviting objections. It is also discretion of the Registrar to invite objection if he thins fit in the peculiar facts and circumstances of each case and decide those objections within specified period.
14. It appears that legislature in its wisdom has taken into his consideration the fact that there might be some dispute between members of the society wherein some of the office bearers of the erstwhile committee may not sign the list of members prepared and submitted after fresh election. From the record and the impugned order it is apparent that no doubt was in the minds of the authority regarding question of appointment by such manipulation of record and countersign as has been alleged and finding of fact having been recorded against the petitioner, the matter can only be adjudicated by civil court, which requires findings of facts on the basis of oral and documentary evidence, which may be adduced by the parties. This is not feasible under Article 226 of the Constitution of India.
15. In so far as decision in State of Orissa (supra) is concerned suffice is to observe that the case is totally different on facts and law applicable in that case. The decision has in a different context altogether i.e. the case was in the backdrop of criminal proceedings. However it may be noted that in the aforesaid case also evidence was recorded by the trial Court for the purpose of adjudication of findings of facts.
It appears that in that case the trial court had made a lapse as such which was also not rectified by the High Court as such the Apex Court observed that the High Court to have in such circumstances granted leave and have proceeded in the matter as first appellate court.
16. In the instance case the petitioners have directly come before the High Court under Section 226 of the Constitution and not through the civil court i.e. without proceedings of adjudication of findings in civil suit on basis of documentary and oral evidence, therefore the aforesaid case of State of Orissa (supra) is not applicable for this reason also.
17. For the reasons stated above, this Court is not inclined to interfere in the matter. However, it is open for the petitioner to challenge the proceeding as well as question of jurisdiction in civil suit before the Civil Court. The letter dated 22.2.2007 appended as annexure No. 4 to the writ petition is only communicating letter and therefore nor required to have detailed reason as required in an order. In so far as the annexure No. 5 order dated 23.3.2007 is concerned it contain reason and is not devoid of it.
18. The petitioner therefore has an efficacious remedy challenging the same before the civil court.
19. The writ petition is accordingly dismissed.