Allahabad High Court
Laxmi Narain Agarwal vs State Of U.P. Through Prin. Secy. ... on 19 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1757, (2019) 9 ADJ 319 (ALL)
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved 1. Case :- MISC. SINGLE No. - 5413 of 2015 Petitioner :- Laxmi Narain Agarwal Respondent :- State Of U.P. Through Prin. Secy. Institutional Finance Lko. Counsel for Petitioner :- Sandeep Dixit,Vijay Dixit Counsel for Respondent :- C.S.C.,Amit Jaiswal,Apoorv Tewari,Dr L P Mishra,Gaurav Mehrotra,Manu Dixit,Rajeiu Kumar Tripathi,S K Kalia,Santosh Kr. Tripathi,Vikas Vikram Singh AND 2. Case :- MISC. SINGLE No. - 5783 of 2015 Petitioner :- Dr. Bhartendu Agarwal Respondent :- State Of U.P. Thru. Prin.Secy.,Institutional Finance & 8 Ors Counsel for Petitioner :- Sandeep Dixit,Vijay Dixit Counsel for Respondent :- C.S.C.,Amit Jaiswal,Gaurav Mehrotra Hon'ble Dinesh Kumar Singh,J.
1. These two petitions have been filed by the petitioner, challenging the order dated 10.09.2015 passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow, finalizing the list of members of general body of Shri Ram Swaroop Memorial Institute of Management and Computer Application (for short "the Society") registered under the provisions of Societies Registration Act, 1860 (for short "Act, 1860").
2. The Society was registered on 29.12.1998 and its registration has been renewed from time to time and the last renewal was made on 29.12.2013 for 5 years i.e. up-to 28.12.2018. The object of the Society, as given in Memorandum of Association, is to establish a Society to promote practical oriented business management information and computer application, education, training, research and development and consultancy etc. The further object is to promote and manage educational and vocational institutions, schools/colleges affiliated to any approved educational body/authority within Union of India besides other objects as mentioned in the Memorandum.
3. At the time of registration of the Society, the following were the members of the Executive Committee with whom the management of the affairs of the Society was entrusted:-
i) Mr. Laxmi Narain Agrawal, S/o Late R.S. Agrawal;
ii) Mr. Banwari Lal Kanchhal, S/o Late C.L. Agarwal;
iii) Mr. Nagendra Kumar Agarwal, S/o Shri P.L Agarwal;
iv) Smt. Pooja Agarwal, W/o Shri Pankaj Agarwal;
v) Prof. (Dr.) S.P. Dixit, S/o Late B.V. Dixit;
vi) Dr. Bhartendu Agarwal, S/o Shri L.N. Agarwal; and
vii) Dr. Swati Agarwal, W/o Dr. B. Agarwal
4. Bye-laws of the Society prescribe three kinds of members i.e. (i) Founder Member; (ii) Life Member; and (iii) Honourary Member. Founder Member is Mr. Laxmi Narain Agrawal. He has been authorized to nominate any life-member as founder member, considering the contribution to the cause of the Society in the form of money, besides physical efforts.
5. All the seven members of the Society are also life members of the Society. The President of the Society has right to nominate any person or persons from time to time as honourary member of the Society and likewise to withdraw such nomination at any time.
6. Termination of membership from the Society can happen in the following eventualities:-
i) on resignation;
ii) on death;
iii) on expiry of the term:
iv) insanity or idiosyncrasy;
v) on conviction in any criminal offence, involving moral turpitude;
vi) bodily infirmity or immorality; and
vii) indiscipline.
7. The Society consists of two organs i.e. (i) general body; and, (ii) executive body. The general body consists of all members of the Society. The general body has to meet at-least once in a year. An extraordinary meeting of the general body can be called in case of emergency by the President or on a requisition of 1/3rd of the total members for a specific purpose. Three days notice is required to be given for calling a general body meeting and one day notice in case of extraordinary meeting of the general body. The quorum for calling meeting of the general body is 1/3rd of the total members of the Society. It is also provided that annual meeting of the Society will be held in the last week of April in every year. The powers and duties of the general body recognize it as the supreme body which will look after overall development of the institute/Society. It is empowered to elect members of the executive body and appoint chief election officer.
8. The executive body consists of all seven members of the Society. The executive body is required to meet at-least once in four months and extraordinary meeting can be called by President/Secretary or on requisition of 1/3rd members of the executive body with three days advance notice for normal meeting and in case of emergency meeting, the telephonic notice would be suffice. The quorum for meeting is 1/3rd of the total members. It is also provided that if a vacancy occurs during a particular year, the executive body is empowered to fill up such vacancy for the remaining period of the year. The powers and duties of the executive body include to manage the institution as per the objectives and regulations of the Society, to approve the terms and conditions of members of the Society. The initial term of the executive body is for ten years and it is provided that after that, elections would be held.
9. The office-bearers of the executive body are:- (i) President, (ii) Vice-President, (iii) Secretary, (iv) Treasurer, and, (v) Executive Members. The President is empowered to preside over the meetings of the general body and perform all functions on behalf of the executive body or the functions which may be delegated by the Society to him. The Secretary is empowered to have all such powers as conferred upon him by the Society in general meeting held under the general direction of the President and is required to perform all functions as are necessary for the management of the Society. Secretary is Chief Executive Officer of the Society. The Secretary is responsible for calling the meetings and various bodies as per the direction of the President of the Society. It is further provided that the constitution and regulation of the Society can be amended only on the decision taken by at-least 2/3rd majority of the total members of the Society and, if it is approved then the necessary amendment would be carried out in the bylaws/regulations of the Society. The accounts were to be operated under the signature of the President or the Secretary with Treasurer. The Secretary is legal representative of the Society in the Court of law. The Finance Committee, which manages the funds of the Society, consists of the President, Secretary and Treasurer of the Society.
10. The President, besides his own vote, has casting vote in case of equality of votes on a decision. It is further provided that any member of the executive body or the committee, who does not attend three consecutive meetings, his membership would stand withdrawn automatically unless there is any specific reason for the absence.
11. From the year 1998 to 2008, there had been no change in the membership or the constitution of the executive body. The term of the executive body got expired after initial ten years in the year 2008. The election of the executive body, as per regulation-8(f)(2) ought to have been held on expiry of initial period of ten years. However, no election took place and expired/time-barred executive body continued to manage the affairs of the Society and the Institution. A list of the executive body was submitted through the Secretary in the office of the Registrar, Firms, Societies and Chits, Lucknow and up-to 2012-2013 the executive body of the Society shown Mr. Laxmi Narain Agrawal as President and 7 Members as the life-members of the general body.
12. On 14.05.2015, the respondent no. 4 in the capacity of the Secretary of the Society submitted an application in the office of the Deputy Registrar, Firms, Societies and Chits, Lucknow for registration of the amendment in the bye-laws of the Society and recognition of list of the executive body of the Society for the year 2015-2016. The dispute has started since then. It is alleged on behalf of the petitioner that on the basis of forged and fabricated documents, a list of 13 members of the general body of the Society, instead of 7 members, was submitted without there being any provision in the bye-laws of the Society. Seven new members were alleged to have been inducted in the Society on the basis of the meetings of the general body of the Society allegedly held on 20.04.2015, 01.05.2015 and 10.05.2015 for amending the bye-laws as well as for conducting other business under the President-ship of Mr. Laxmi Narain Agrawal. However, the documents did not contain the signatures of Mr. Laxmi Narain Agrawal. On the basis of the application dated 14th May, 2015 filed by the Secretary, the respondent no. 4, the amendment in the bye-laws of the Society was registered by the Deputy Registrar, Firms, Societies and Chits on the next day i.e. 15.05.2015 itself. It is further alleged that the said registration was carried out by the Deputy Registrar in a mechanical manner and without even considering the fact that signatures of the President, who had allegedly presided over the meetings, were not available on the proceedings. It was also said that instead of seven members of the executive committee, the total members of the executive committee would be nine under the amended bye-laws of the Society. The new members were Mr. Pankaj Agrawal, son of Laxmi Narain Agrawal, Dr. Swati Agrawal and Smt. Sonali Agrawal.
13. On 19.05.2015, an application was filed by the petitioner since, he came to know about the aforesaid amendment in the bye-laws, change in the constitution of the executive body of the Society and induction of the new members. He filed the application before the Deputy Registrar, Firms, Societies and Chits, Lucknow, raising objections regarding registration in the amendment of the by-laws as well as list of the executive body and induction of the new members. It was stated that after initial term of the executive committee of 10 years got expired on 28.12.2008, no election had ever taken place and the Secretary had submitted false, fabricated and forged documents in this respect. It was also alleged that from the inspection of the record, it had come to the knowledge that for the year 2015, on the basis of forged and fabricated documents prepared by the Secretary, the proceedings regarding holding elections had been submitted and, the bye-laws had been amended. It was also said that he never presided over any meeting, allegedly held for the aforesaid purpose. On days, when the meetings of the Society were allegedly held under his Chairmanship, he was not even present in Lucknow. No document regarding any election having been held from the year 2008 to 2013 had been submitted as no election had taken place in these years. The documents submitted on 24.12.2013 by the Secretary, Mr. Nagendra Kumar Agrawal, it was shown that the election had taken place on 20.12.2013 and on that day Mr. Laxmi Narain Agrawal had presided over the meeting of the Society for conducting the election. It was also alleged that out of eleven members, nine members were shown to have been present in the meeting. He never directed the Secretary to hold any such meeting and the papers submitted regarding such meeting were forged and fabricated. Since, the elections of the executive body of the Society were not held within 10 years from the date of its registration and its tenure got renewed in the year 2012, executive body of the Society became time-barred and under the provisions of Section 25(2) of the Act, 1860, election should have been held under the aegis of the Deputy Registrar, Firms, Societies and Chits only. It was, therefore, prayed that the amendment registered should be quashed, the list of the membership for the year 2015-16 be cancelled, the executive body of the Society should be declared time-barred and fresh election should be held under the aegis of the Deputy Registrar, Firms, Societies and Chits. This application was accompanied with an affidavit along with other documents in support of the contentions.
14. After notice was issued and the respondent no. 4 submitted undated reply, on 30.05.2015, the Deputy Registrar passed/issued an interim order, suspending the managing committee of the Society for the year 2015-16 till further orders and, it was also directed that no meeting should be called, either of the managing committee or of the general body and no member to be inducted or removed or no decision to be taken and any decision regarding income/expenditure should be taken only after prior approval from the Deputy Registrar, Firms, Societies and Chits.
15. After exchange of pleadings, hearing before the Deputy Registrar, Firms, Societies and Chits got concluded on 07.07.2015. The parties were asked to submit their written submissions/reply. The petitioner submitted his written submissions/reply on 13.07.2015. It was stated that a list of the members of the general body of the Society with effect from 2009-2010 was submitted by the respondent no. 4 in the year 2013-14 and signature of the petitioner, Mr. Laxmi Narain Agrawal was obtained on the said list by misrepresentation. It was specifically said that Mr. Laxmi Narain Agrawal, President of the Society, had never inducted any member by way of nomination or in any other manner.
16. The Deputy Registrar, Firms Societies and Chits passed an order on 27.07.2015 for holding election of the executive body in exercise of the powers under Section 25(2) of the Act, 1860, so far so good, but the order also contained a list of the general body of the Society, having eleven members. The Deputy Registrar had recorded a finding of fact that in the year 2008-2009 there were seven members of the general body, but from 2009-10 to 2012-13 four (4) new members had been inducted and, hence, in the year 2013-14 there were eleven members of the general body of the Society.
17. The petitioner, thereafter filed Writ Petition No.4377 (M/S) of 2015, challenging the part of the order dated 27.07.2015 passed by the Deputy Registrar in which the list of members of the general body of the Society had been issued. This Court vide judgment and order dated 30.07.2015 disposed of the aforesaid writ petition, holding that indisputably the term of the committee of the management ended/expired in the year 2008, and no elections were held by the outgoing committee of management before expiry of its term in the year 2008. It was further held that outgoing committee of management had become time-barred in the year 2008. The Deputy Registrar, while exercising its powers under Section 25(2) of the Act, 1860, had invited objections in respect of tentative list of the members and had also issued the schedule of election, such a course should not have been adopted. Firstly, the list of the members of the general body should have been finalized and, thereafter, the election schedule should have been published. The Deputy Registrar had committed a procedural irregularity. This Court, after noting the submissions of learned counsel for the petitioner, that once the committee of management had become time-barred after 2008, then the four members could not have been enrolled as members of the general body of the Society and, the new members could have been enrolled only by a validly elected committee of management as per bye-laws of the Society and not otherwise, and, further in absence of a validly elected committee of management, the four persons could not have been enrolled as members of the general body of the Society and, as such, their names could not be included in the list of the members of the general body itself by the Deputy Registrar, Firms, Societies and Chits under Section 25(2) of the Act, 1960 granted liberty to the petitioner to file detailed objection before the Deputy Registrar in pursuance of the order passed by him on 27.07.2015 within next four days and the Deputy Registrar, Firms, Societies and Chits was directed to take into consideration all the pleas raised by the parties and then decide the final list of the members of the general body under Section 25 (2) of the Act, 1860 within next 10 days. The aforesaid judgment and order dated 30.07.2015 passed by this Court had attained finality as it had not been challenged further.
18. In compliance of the order passed by this Court, the petitioner had submitted detailed objection on 03.08.2015 to the tentative list so issued by the Deputy Registrar on 27.07.2015. It was prayed that the persons, whose names had been indicated at serial nos. 2, 7, 8, 9, 10 and 11, were not members of the Society and, their names should be deleted and then the final list of the general body be issued. It was said that the person at serial no. 2, namely, Mr. Banwari Lal Kanchhal had submitted his resignation on 18.05.2015 from the life-membership of the Society and, his resignation letter was also submitted along with the objection. With respect to the other members, whose names had been indicated at serial nos. 7, 8, 9, 10 and 11, it was said that they had never been inducted as members by Mr. Laxmi Narain Agrawal in the capacity of the President of the executive body. He had never nominated any member to become honourary member under the provisions of the bye-laws of the Society for induction as member.
19. The respondent no. 4 also submitted reply to the objection filed by the petitioner. In none of the paragraphs of the reply submitted by the respondent no. 4 date had been indicated with respect to the induction of the new members in the Society by nomination by the President or otherwise in any manner prescribed under the law. Neither any resolution nor any order was annexed along with the reply by means of which the persons, whose names were mentioned at serial nos. 7, 8, 9, 10 and 11, had been inducted as members. In respect of resignation of Mr. Banwari Lal Kanchhal, it was stated by the respondent no.4 that he had submitted an affidavit on 16.07.2015 and also an application addressed to the Deputy Registrar, Firms, Societies and Chits indicating therein that the resignation dated 18.05.2015 had been obtained from Mr. Banwari Lal Kanchhal by putting "emotional pressure" and he wanted to withdraw the same.
20. The petitioner submitted objection to the reply submitted by the respondent no. 4 on 13.08.2015. A categorical stand was taken by the petitioner that the Society had become time-barred after the year 2008 by operation of law and, therefore, any action performed by the time-barred executive committee was a nullity in eye of law and, therefore, induction of any member after 2008 could not be taken into consideration for holding the election under the provisions of Section 25 (2) of the Act, 1860. Affidavits of Dr. Bhartendu Agarwal and Dr. Swati Agrawal were also submitted wherein it had been specifically stated that no new member had ever been inducted in the Society and on the date of filing of the affidavit there were only five members of the Society. In none of the affidavits of the persons, whose names had been found in the tentative list at serial nos. 2, 7, 8, 9 and 10, it was indicated that on which date one was inducted as member of the Society. Neither any resolution nor any order in this respect had been filed. The affidavit of Mr. Banwari Lal Kanchhal did not bear his signature and no averment had been made in the said affidavit with respect to withdrawal of resignation dated 18.05.2015 by him. The matter was postponed for final hearing to 07.08.2015 and the arguments got concluded and the order was reserved by the Deputy Registrar, Firms, Societies and Chits on 17.08.2015.
21. After the conclusion of the arguments on 17.08.2015 when the order was reserved, the respondent no. 4 had withdrawn a huge amount from the account of the Society. The petitioner submitted applications on 26.08.2015 and 02.09.2015 before the Deputy Registrar requesting him to pass orders immediately and the ex-office-bears of the committee of management be restrained from withdrawing amount from the bank accounts of the Society. However, no order was passed by the Deputy Registrar and, thereafter, on 10.09.2015 the impugned order was passed whereby the persons, whose names were indicated in the tentative list at serial nos. 2, 7, 8, 9 and 10, were also declared to be members of the general body of the Society.
22. Mr. Banwari Lal Kanchhal, whose name was at serial no. 2 of the tentative list, had been held to be a life-member of the Society. The affidavits of Mr. Banwari Lal Kanchhal purported to have been received on 26.08.2015 had been taken into consideration by the Deputy Registrar, which was never served upon the petitioner. Neither the petitioner was ever informed about such an affidavit inasmuch as hearing got concluded on 17.08.2015.
23. The Deputy Registrar in his order, impugned in this petition, has held that Mr. Banwari Lal Kanchhal had given resignation from the Vice-President ship on 18.05.2015, which was accepted by Mr. Laxmi Narain Agrawal as President of the Society on 20.05.2015. According to bye-laws 6(i) of the Society any member can give his resignation. There is no provision for acceptance of the resignation by the general body, the executive committee or the President. After considering the Affidavit of Mr. Banwari Lal Kanchhal dated 26th August, 2015, which was submitted after the order was reserved on 17th August, 2015, the Deputy Registrar, Firms, Societies and Chits has held that Mr. Banwari Lal Kanchhal had resigned from Vice-President-ship, but not from the life-membership and he has been declared to be a life-member. It has been further, held that Mr. Laxmi Narain Agrawal (petitioner) had raised the objection for the first time after six years in the year 2015 regarding the executive committee of the Society being time-barred. It has been held that the election of the executive committee was held in the year 2013 and, the executive committee was registered for the year 2013-14. In the executive committee for the year 2013-14, Mr. Pankaj Agarwal was inducted on demise of Dr. S.P. Dixit. It has been further held that in the proceedings submitted by the respondent no. 4 on 14.05.2015, there was no signature of Mr. Laxmi Narain Agrawal and, thus, it has been held that Mr. Laxmi Narain Agarwal had not participated in the election allegedly held on 20.04.2015. It was further held that from 1998 to 2012-2013 there was no change in the membership nor in the posts held by the members in the executive body of the Society. Seven life members of the Society were the members of the executive committee as well as officer-bearers. From 2009-10, four new members were shown to have been inducted in the general body of the Society. In the year 2013-14, one new member Mr. Mukesh Khandelwal shown to have been inducted as member of the general body. In the meeting of the general body held on 10.12.2013, Mr. Pankaj Agarwal was shown to have been inducted in the executive meeting on demise of Dr. S.P. Dixit, a life-member. The other office-bearers and members of the executive body were the same who were at the inception of the Society. In the meeting held on 20.12.2013, the committee of management was elected for the year 2013-14. On the basis of the aforesaid, it was concluded that Mr. Laxmi Narain Agarwal, President and member of the general body, had been participating in all the activities of the Society and his signatures in the proceedings are similar. Mr. Bhartendu Agarwal, Smt. Swati Agarwal and Smt. Pooja Agarwal were aware of these proceedings throughout. None of them i.e. Mr. Laxmi Narain Agarwal, Mr. Bhartendu Agarwal and Smt. Swati Agarwal had ever objected in respect of the proceedings for the year 2012, 2013 and 2014 that the respondent no. 4 has been conducting the affairs of the Society against the rules or bye-laws. It has been said that after the Society became time-barred in the 2008, the proceeding of the executive body can be said to have become time-barred, but the proceedings of the general body cannot be said to have become time-barred inasmuch as the general body does not become time-barred. It is said that there is no provision for induction of the life-members or removal thereof. In absence of such provision in the bye-laws/rule, the general body would have power for inducting new members and, it was the duty of the general body to induct member(s) to complete the minimum requirement of seven members. In view of the aforesaid, the Deputy Registrar, Firms, Societies and Chits had declared the membership of the general body in the year 2012-13 as completely valid inasmuch as till 2012, the seven life-members had been working from the year 1998 without any amendment and, those proceedings have been submitted under their signatures. It has been also held that there is nothing on record to show that those proceedings were forged or fabricated. On 20.12.2013, the respondent no. 4 had submitted the papers for renewal of the registration along with list of the members of the executive body for the year 2013-14, balance-sheet,, the condolence meeting dated 05.12.2013, the induction of new member to fill the vacancy, the proceedings of election dated 20.12.2013 and then approval of the minutes dated 25.12.2015 along with death certificate of Dr. S.P. Dixit. It was also held that in all these documents, Mr. Laxmi Narain Agarwal, Mr. Nagendra Kumar Agarwal, Smt Pooja Agarwal and Mr. Pankaj Agarwal had put their signatures. After the death of Dr. S.P. Dixit, in the proceeding of the general body dated 10.12.2013, Mr. Pankaj Agarwal was inducted as member of the executive committee. It was held that Mr. Laxmi Narain Agarwal was fully aware of these proceedings.
24. In view thereof, the Deputy Registrar has held that objections in respect of Mr. Pankaj Agrawal, Mr. L.C. Khandelwal, Mr. Mukul Saxena and Dr. Vikrant Gahlot to be the members of the general body is base-less and, the resignation of Mr. Banwari Lal Kanchhal cannot be held to be valid. He has declared all the four persons, named above, to be the members of the general body. However, he has held that name of Mr. Mukesh Khandelwal cannot be included in the final list of the general body inasmuch when Mr. Mukesh Khandelwal was inducted in the year 2013-14 at that time Dr. S.P. Dixit had died. He published the list of 10 members of the general body whose names are as mentioned hereunder:-
(i) Mr. Laxmi Narain Agrawal;
(ii) Mr. Banwari Lal Kanchhal:
(iii) Mr. Nagendra Kumar Agarwal:
(iv) Dr. Bhartendu Agrawal;
(v) Dr. Swati Agrawal;
(vi) Smt. Pooja Agrawal;
(vii) Mr. Pankaj Agrwal;
(viii) Mr. L.C. Khandelwal;
(ix) Mr. Mukul Saxena; and
(x) Dr. Vikrant Gahlot.
25. Heard Mr. Sandeep Dixit, Mr. Vijay Dixit and Mr. Vijay Pratap Singh, learned counsels representing the petitioners, and Sri L.P. Mishra, assisted by Mr. Santosh Kumar Tripati, Advocate, Mr. Rajeiu Kumar Tripathi, Mr. S.K. Kalia, learned Senior Advocate, assisted by Mr. Amit Jaiswal, Mr. Vikas Vikram Singh, Mr. Manu Dixit and Mr. Gaurav Mehrotra, learned counsels representing respondents.
26. On behalf of the petitioners, Mr. Sandeep Dixit has submitted that the Deputy Registrar, while finalizing the list of the general body of the Society, has failed to take into consideration bye-laws of the Society. The bye-laws of the Society do not provide for induction of life-member or ordinary member in the Society and only provision is regulation 5.3 for induction of honourary member by nomination by the President. He has further submitted that the executive body/managing committee of the Society had become time-barred after 2008.The petitioner, being President of the managing committee, had never nominated any person to be inducted as member. He has further submitted that under the bye-laws, general body is not empowered to induct any member in the Society. In the counter affidavit filed by the respondents, nowhere it indicates the date of induction of the any of the new members in the Society, nor any resolution of the general body of the Society has been annexed or referred to by them by means of which they have been inducted. He has further submitted that no notice for calling the meeting of the general body, as provided in bye-laws 8(B)(ii), had ever been issued and in absence of any valid meeting requisitioned as prescribed under the bye-laws, any action of the managing committee or the general body is absolutely illegal and void. He has further submitted that the Deputy Registrar has failed to take into consideration that after coming into force Section 4(B) in the Act with effect from 09.10.2013, list submitted by the respondent no.4 has to be verified as per the provisions of Section 4(B) read with Section 15 of the Act and, no document has been submitted by the respondents before the Deputy Registrar or before this Court in respect of their contention that they have been inducted as member in the Society. He has further submitted that the stand of the respondent no. 4 before the Registrar was that the members were inducted in the Society by general body after being nominated by the President, whereas the Deputy Registrar has held that members, who were not nominated, were inducted by the general body. Thus, the finding of the Deputy Registrar is contrary to even the stand taken by the respondent no. 4, whereas the specific stand of the petitioner has been that he has never nominated any member as member of the Society.
27. He has further submitted that the Deputy Registrar has again recorded an incorrect finding of fact that the list of managing committee of the Society was regularly filed since 2008-2013 inasmuch as the case of all the parties has been that the list of the managing committee was collectively filed by the respondent no. 4 for the first time on 03.12.2012 and, thereafter, on 24.12.2013. There was no requirement before 09.11.2013 for submitting the list of general body of the Society at the time of renewal of registration or at the time of submitting the annual list of the managing committee, as per Section 4 of the Act. The Deputy Registrar has not registered any list of the managing committee for previous year except the list of the managing committee submitted by the respondent no. 4 in the year 2015-16 and, therefore, there was no requirement for the petitioner to seek quashing of the list of the managing committee, which was not registered at the office of the Registrar. Since, for the first time the list of the managing committee got registered for the year 2015-16 and, the petitioner had sought its quashing. Further, there cannot be an estoppel against law. The conduct of office-bearers of the managing committee of the Society, which had become time-barred on 28.12.2008, was not justified in inducting any person to be the member of the Society and, under the provision of Section 4(B) it was incumbent upon the Deputy Registrar to verify the fact whether the induction as member was as per the provisions of the bye-laws and Section 15 of the Act. Any action or inaction contrary to the provisions of the bye-laws and Section-15 of the Act would be illegal and null and void.
28. The arguments were concluded before the Deputy Registrar on 17.08.2015 and, the Deputy Registrar had taken into consideration two documents which were filed by the respondents after 17.08.2015 without even serving copies of those documents upon the petitioner. The subsequent stand of Mr. Banwari Lal Kanchhal in his affidavit filed after 17.08.2015 that handwritten words in the resignation letter were not in his hand-writing and, it was manipulated one was never his stand earlier when he submitted the earlier affidavits, on 16.07.2015 and, thereafter, on 11.08.2015. The contents of both the affidavits are different. The second document was from the Bank which was also not served on the petitioner. It is submitted that the petitioner had obtained opinion of forensic expert, who had clearly opined that written words in letter dated 18.05.2015 were in the hand-writing of Mr. Banwari Lal Kanchhal. Therefore, the finding of the Deputy Registrar that Mr. Banwari Lal Kanchhal resigned from the post of Vice-President and not from Life-Membership of the Society is wholly incorrect and untenable.
29. Regulation 6(i) of the bye-laws of the Society provides that any member would cease to be a member of the Society on resignation. Since Mr. Banwari Lal Kanchhal had submitted his resignation on 18.05.2015, he could not be treated to be a member of the Society. There is no provision for acceptance of the resignation. The resignation in present context was unilateral action, it did not require any acceptance after resignation dated 18.05.2015 and, he ceased to be a member of the Society w.e.f. 18.05.2015. It is alleged that the bye-laws of the Society were amended in the year 2012. However, no new member had been inducted as life-member, which is evident from amended regulation 5.2 itself.
30. The information brochure of the college of the Society annexed as RA-7 to the rejoinder affidavit to the counter of the respondent no. 4 would show that till 2011-2012 there were seven original members of the Society, including Dr. S.P. Dixit, existing and, after death of Dr. S.P. Dixit in the subsequent information brochure of the college, it had been indicated that the life-members of the Society were only six. It is also submitted that the information brochures are published in the supervision of the respondent no. 6, who is the Executive Director of the college upto the year the brochure for the Session 2015-16 was published. From perusal of the aforesaid brochures, it would be clear that there were only six life-members of the Society after demise of Dr. S.P. Dixit.
31. The Respondent no. 4 had manufactured and forged documents, including death certificate of Dr. S.P. Dixit, which was filed by him in the office of the Deputy Registrar. The death of Dr. S.P. Dixit had been shown to be on 26.12.2013, whereas the fact is that Dr. S.P. Dixit had died on 25.12.2011. Respondent No. 4 had filed forged death certificate dated 26.12.2013 before the Deputy Registrar on 24.12.2013 i.e. two days prior to the issuance of the alleged death certificate. The respondent no. 4 had submitted the forged documents relating to the proceedings of the Society dated 20.04.2015 and all other subsequent proceedings in which it had been indicated that the petitioner had participated, whereas the Deputy Registrar himself has acknowledge the fact that those documents were forged and, therefore, he has not taken into consideration those documents.
32. Respondent nos.6 to 9 have not filed any document to substantiate their claim that they had been inducted validly as member of the Society. Even the date of induction is not mentioned. The Deputy Registrar himself has declared in the impugned order that the committee of management of the Society had become time-barred after December, 2008 and, the said finding has not been challenged by the respondents and, thus, it has attained finality.
33. Once the committee of management had become time-barred, the committee of management as well as the office-bearers ceased to exist except for performing day-to-day functions and, thus, no office-bearer or the committee of management could have inducted any person as a new member of the society after 2008. It is further submitted that under the provisions of Section 25(2) of Act, the election schedule had been published by the Deputy Registrar without calling a meeting of the general body of the Society as required under the said provision. It is further submitted that as mentioned above, at present there are only five valid members in the Society as per the bye-laws of the Society and, therefore, direction should be issued by this Court permitting the remaining five valid members of the Society to induct two new members so that the Society could be saved from its dissolution as per the law laid down by the Division Bench of this Court in Special Appeal No. 193 of 2017 'C/m Munshi Ramsukh Uchhattar Madhyamik Vidyalay and another Vs. State of U.P. and others'.
34. Sri L. P. Misra, learned counsel appearing for respondent no. 4, has submitted that this Court, while exercising the writ-jurisdiction under Article 226 of the Constitution of India, should not decide the disputed questions of fact. In the present petition disputed questions of fact are involved and to adjudicate the same, the appropriate remedy would be to approach the Civil Court of the competent jurisdiction.
35. In support his contention, he has placed reliance on judgments of the Supreme Court in Orissa Agro Industries Corporation Ltd. Vs. Bharti Industries and others, (2005) 12 SCC 725 as well as Rourkela Shramik Sangh Vs. Steel Authority of India Ltd. and another, (2003) 4 SCC 317. He has submitted that the Deputy Registrar, after perusing the record available before him and hearing the parties, has finalized the members of the general body which cannot be challenged in the writ-jurisdiction under Article 226 of the Constitution. If any party is aggrieved by the aforesaid order, the remedy lies before the competent Civil Court.
36. In support of the aforesaid submission, he has placed reliance on judgment of the Division Bench of this Court in Committee of Management Vs. Kisan Shiksha Sadan, Banksahi, District Basti Vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another 1995 (2) UPLBEC 1242 and subsequent judgment in Committee of Management Vs. State of U.P. 2015 (1) AWC 1061 (Alld.). He has further submitted that the petitioner being an individual member has no locus standi to challenge the election process or the result thereof. When the decision has been taken by the majority of the members of the general body, an individual cannot take a contrary stand. Once the election process started, it should reach to its logical conclusion and only the final result of the election can be challenged and that too not in writ petition but before the appropriate forum. It has been further submitted that the petitioner has filed a complaint only on 19.05.2015 without offering any explanation as to why the petitioner, who has been the President of the managing committee after December, 2008, after expiry of initial ten years tenure and has been participating in the affairs of the managing committee and general body of the Society did not raise any complaint at any point of time and, only when the dispute arose for the first the time on 14.05.2015, he filed the complaint, questioning the continuance of the committee of management and the elections etc. held in the year 2013 and in the year 2015. The petitioner has all along been working as the President of the managing committee. The petitioner did not raise any objection at any point of time regarding induction of four members, including respondent no. 6. It is only when the relationship went bitter, he filed objection. It is submitted that last renewal certificate was issued on 30.12.2013 with effect from 29.12.2013 for 5 years on an application signed by the petitioner (Laxmi Narain Agrawal), respondent no. 4 (Mr. Nagendra Agrawal as Secretary), Smt. Pooja Agrawal as Treasurer and Mr. Pankaj Agrawal as member. He has, therefore, submitted that the petitioner is estopped to challenge the inclusion of the new members and from his conduct, it is clearly evident that he acquiesced to the changed constitution of the general body. He has further submitted that the writ petition is without any merit and substance and is liable to be dismissed.
37. Shri S. K. Kalia, learned Senior Advocate, assisted by Mr. Amit Jaiswal, Advocate, representing respondent no. 4, has reiterated the submissions made by Sri L.P. Misra, Advocate. He has further submitted that the Secretary of the Society i.e. respondent no. 4 had submitted the register of the membership of general body as well as executive body before the Deputy Registrar. The respondent no. 6 has been the member of the general body since 2009-10 and, he was inducted in the executive body in the year 2013-14, after the demise of Dr. S.P. Dixit. He has further submitted that the application for renewal of the registration of the Society was filed before the Deputy Registrar which had the signature of the petitioner and, the respondent no. 6 had already become the member of the general body of the Society since, before 2013. Even the resolution dated 05.04.2014 passed by the executive committee of the Society, which authorized Dr. Bhartendu Agrawal and Dr. Swati Agrawal to operate the bank account of the Society contained the signature of the respondent no. 6, who was also one of the signatories. He has further submitted that the executive body does not become ineffective on expiry of its terms.
38. Shri Rajeiu Kumar Tripathi, learned counsel representing respondent no. 5, has submitted that the petitioner has admitted and addressed himself as President of the executive committee of the Society all along even till the date when he filed the complaint on 19.05.2015 before the Deputy Registrar, Firms, Societies and Chits, Lucknow and, therefore, it is not open to them to deny the last election of the executive committee held on 20.12.2013. The petitioner has admitted Mr. Pankaj Agrawal to be the member of the executive committee, therefore, he cannot dispute that he is not member of the general body of the society inasmuch as only general body members can be elected to become the office-bearers of the executive committee. He has further submitted that the whole dispute has arisen as the petitioner wanted to be the signatory of all cheques along with Secretary and Treasurer and to induct his two sons Mr. Neeraj Agrawal and Mr. Nanveen Agrawal in the executive body of the Society, though they were not the members of the Society. He has further submitted that the respondent no. 5 had resigned from the post of Vice-President on 18.05.2015, but he had never resigned from life-membership of the Society and the words 'evam aajiwan sadasyata' in the resignation had been manipulated by the petitioner himself as the respondent no. 5 had not been supporting him in the complaint. He has further submitted that the question of resignation of the respondent no. 5 from the post of Vice-President or from life-membership is a question, which can be adjudicated by the competent Civil Court. Report of private writing expert about the hand-writing of the respondent no. 5 cannot be considered by this Court.
39. Shri Gaurav Mehrotra, learned counsel representing the respondent no. 10-Society has submitted that this writ petition is not maintainable as it has been filed by an individual member and, even if it is assumed that there were only five valid members in the general body of the Society, at-least two members were required to file the writ petition inasmuch as Section 25(i) of the Act requires that such dispute can be raised by 1/4th of the total member of the Society. The learned counsel has further submitted that induction of new members in the society after the expiry of the term of the executive body does not suffer from any illegality or infirmity. The learned counsel has further submitted that after expiry of term, neither the executive body nor the office-bearers become defunct, but they continue to exercise their day-to-day function till new executive body assumes the charge. He has further submitted that after expiry of term of the executive body, the outgoing executive committee can hold elections. To substantiate the assertion that the executive body does not become defunct on expiry of its term, the learned counsel has placed reliance on the judgment of this Court in Vinod Kumar Varshney Vs. State U.P., 2017 (4) AWC 4245. He has further submitted that there is no such provision in the bye-laws of the Society which renderes the executive body defunct or non-functional after its term got expired and, therefore, after expiry of the term till the valid elections were held, the executive committee was having all the powers and duties as of the regular executive committee. The executive committee and the office-bearers continued to discharge the official functions of the Society even after the expiry of the term of the executive body. He has further submitted that even if it is assumed that the executive body had become defunct and new members could not have been inducted in the general body of the Society, in such a situation, the general body could perform all functions necessary for the development of the Society which would include the power to induct new members in the Society. The general body has the plenary powers of management of the affairs of the Society. The general body has merely delegated the power of induction of new members in the Society to the executive body. However, this delegation of power does not denude the general body from exercising the power of inducting members.
40. The meeting dated 10.12.2013 of the general body was convened for inducting Mr. Pankaj Agarwal as member of the executive committee as one vacancy had occurred on the demise of Dr. S.P. Dixit. This meeting was attended by eight members out of eleven members and the minutes of the meeting dated 10.12.2013 bear signatures of Shri Laxmi Narain Agarwal, respondent no. 4 (Nagendra Kumar Agarwal), Smt. Swati Agarwal and Smt. Pooja Agarwal. In the meetings dated 12.12.2013 and 23.12.2013 of the general body of the Society, the petitioner was present and had put signatures. It is further submitted that once the election of the executive committee was held on 12.12.2013, the Deputy Registrar had no jurisdiction to declare the executive committee as time-barred/defunct. It is the Presiding Officer alone, who has the jurisdiction to try the dispute relating to induction of certain members, who were elected in the election dated 20.12.2013. It is also submitted that the present dispute involves the disputed questions of fact and, therefore, the same is liable to be dismissed.
41. I have carefully considered the pleadings and submissions advanced by the learned counsels representing the parties and perused the record.
42. The Society is a close Society of family members except two members, out of seven members, being outsiders i.e. (i) Mr. Banwari Lal Kanchhal, a relative in respect of whom there is doubt about his resignation, and (ii) Dr. S.P. Dixit, who died on 25.12.2011 and in his place Mr. Pankaj Agarwal was allegedly inducted.
43. Mr. Laxmi Narain Agarwal is the Founder Member of the Society. Mr. Nagendra Agarwal is his brother, Ms. Pooja Agarwal is his daughter-in-law, Dr. Bhartendu Agarwal is his son and Dr. Swati Agarwal is wife of Dr. Bhartendu Agarwal. The Society bears testimony of being a close family Society and the contribution of Mr. Laxmi Narain Agarwal, being the Founder Member, is acknowledged in the Memorandum of Association of the Society. He is the person, who by his contribution, labour and finance, had set-up the Society in the year 1998. Initial period of of ten years of the Committee of Management of the Society, which was elected in the year 1998, got expired in 2008. Mr. Laxmi Narain Agarwal was the President and the respondent no. 4 was Secretary of the Society.
44. The dispute in this writ petition is only with regard to the members of the general body, who had been inducted after the year 2008. This Court, in its earlier judgment and order dated 30.07.2015, rendered in the first round of the litigation, in Writ Petition No.4377 (M/S) of 2015 had held that outgoing Committee of Management had become time-barred in year 2008. The relevant part of the aforesaid judgment and order dated 30.07.2015 is extracted herein below:-
"........................................... The parties are in agreement on the point that the outgoing committee of management of the society was elected in the year 1998 and, there was no dispute in this regard. The term of the said committee of management ended in the year 2008. Petitioner no. 2 was the President and opposite party no. 4 was the Secretary of the Society. The dispute is only with regard to the members of the general body enrolled after 2008. As per bylaws, the term of the outgoing committee of management ended in the year 2008 and no elections were admittedly held by the outgoing committee of management. Though the impugned order is referable to Section 25(2) and, it contains the tentative list of members of general body upto the year 2013-14, the fact remains that the outgoing committee of management had become time barred in 2008."
(emphasis supplied) This finding that the outgoing committee of management has become time-barred in the year 2008 had become final inasmuch as the aforesaid judgment has not been challenged any further. Further, the Deputy Registrar in his impugned order has also held the committee of management time-barred and this finding has not been challenged by the respondents.
45. This Court vide detailed order dated 07.01.2016 has already dealt with the three preliminary issues: (i) regarding maintainability of the writ petition in the name of the Society by Mr. Laxmi Narain Agarwal (ii) maintainability of the writ petition at the behest of an individual member i.e. Mr. Laxmi Narain Agarwal and (iii) on the ground of disputed questions of fact being involved, requiring the matter to be relegated to the remedy available before the Civil Court, especially in view of the time schedule of election having been declared and membership having been decided by the Deputy Registrar. I do not find any reason to take a different view than taken in the order dated 07.01.2016 on these three issues. I am in complete agreement with the reasoning in the order dated 07.01.2016 wherein the aforesaid three issues have been decided. I will briefly refer to the reasoning adopted in the order dated 07.01.2016 in succeeding paragraphs before dealing with other issues involved in these two writ petitions.
46. The undisputed fact is that the Society in question runs certain educational institutions. It was registered under the Act, 1860 in December, 1998. All the seven members were its office-bearers. Petitioner Laxmi Narain Agarwal was the President, respondent no. 4 (the brother of the petitioner) was the General Secretary. The other members and office-bearers were petitioner's daughter-in-law Ms. Swati Agarwal, his son Bhartendu Agarwal, his daughter-in-law Ms. Pooja Agarwal, Mr. Banwari Lal Kanchhal and Dr. S.P. Dixit. Initial ten years term of the Committee of Management got expired in the month of December, 2008. Admittedly, no election was held by the outgoing committee of management before the expiry of its term, therefore, it became time-barred, but, in fact, the office-bearers appear to have continued to manage the Society. The petitioner continued to be treated as the President. Likewise, respondent no. 4 was treated as the Secretary. As many as five new members of the general body are said to have been inducted after December, 2008. In December 2013, the renewal/registration of the Society was obtained.
47. The respondent no. 4 had submitted an application in December, 2013, annexing therewith a list of members and office-bearers of the committee of management of the Society for the years 2008-09, 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 enbloc, balance-sheet of earlier years, 'Shok Prastav' dated 05.12.2013 in respect of death of Dr. S.P. Dixit, proceedings for filling up vacancy arising therefrom in the committee of management/executive body dated 10.12.2013, the election proceedings dated 20.12.2013, ratification dated 25.12.2013 and the list of the members of the general body of the years 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14. It is alleged that these documents bear the signatures of the petitioner, though his case has been that he was made to sign certain blank papers as the respondent no. 4, being his brother, he did not doubt him and signed the blank papers, but these papers were misused to make an attempt to usurp the Society. The Deputy Registrar did not put any question before accepting these documents whether they were filed as per the requirements of Section 4 and 4-B of the Act, 1860. Such list could only have been filed by validly elected office-bearers of the Society. Admittedly, no elections had been held since 2008 and, therefore, there was no validly elected committee of management, which could have filed these papers.
48. The petitioner has submitted that he had no knowledge about the documents having been filed and it was only when the inspection of records pertaining to the Society was made in the officer of the Deputy Registrar on 16.05.2015 by Mr. Bhartendu Agarwal, son of the petitioner, and the petitioner in connected Writ Petition No.5783 (M/S) of 2015, the fraud and misrepresentation of facts came to their knowledge. Thereafter, a complain/objection was filed on 19.05.2015 alleging fabrication of documents and forgery, inter alia, praying that the committee of management should be declared time-barred and all applications, documents filed during the interregnum allegedly bearing his signatures or otherwise be treated as null and void. It is on this application the proceedings got commenced before the Deputy Registrar.
49. The Deputy Registrar vide his order dated 27.07.2015 declared the committee of management of the Society time-barred under Section 25(2) of the Act, 1860 and also declared the membership of the general body tentatively mentioning therein also the names of five persons i.e. S/Shri Pankaj Agarwal, Mukesh Khandelwal, Mukesh Saxena, Mukesh Singerwal and Dr. Vikrant Gahlot, who were allegedly inducted after December, 2008, inviting objections in this regard and also simultaneously releasing the time-schedule for the election.
50. Being aggrieved by the aforesaid order dated 27.07.2015 passed by the Deputy Registrar, the petitioner filed Writ Petition No.4777 (M/S) of 2014, challenging the aforesaid order, which was disposed of vide order dated 30.07.2015, giving an opportunity to the petitioners to file objection with regard to the tentative list of general body circulated vide order dated 27.07.2015 with a direction to the Deputy Registrar to consider the same.
51. In pursuance of the aforesaid judgment and order dated 27.07.2015, the impugned order dated 10.09.2015 has been passed by the Deputy Registrar whereby the final list of members of the general body has been declared under Section 25(2) of the Act, 1860. According to the impugned order, the general body comprises of ten members. The induction of Mukesh Khandelwal, as member of the general body, has not been found favour by the Deputy Registrar, but the induction of four others, who have been allegedly inducted after December 2008, has been held to be valid.
52. This Court vide order dated 07.01.2016 has held that no election to the committee of management has been held since 2008 and, the committee of management had become time-barred under Section 25(2) of the Act, 1860, therefore, the writ petition, in the name of the Society by the petitioner, the founding member, is not strict-sensu maintainable in view of the provisions of Section 6 of the Act, 1860 and the bylaws of the Society and the preliminary issue no. (i) has been decided in favour of the respondents. It has been directed to delete the Society as petitioner no. 1 from array of the parties.
53. In respect of second objection i.e. maintainability of the writ petition at the behest of an individual member of the Society (petitioner no. 1) in the present case, it has been held that the general body of the Society as existing originally was very small, comprising of only seven members. Dr. S.P. Dixit had died on 25.12.2011 thereby leaving only six members. Out of these, Mr. Banwari Lal Kanchhal is said to have resigned and out of remaining five members the respondent no. 4 is one of the members. Out of remaining four members, two members are before the Court and the third member, Ms. Swati Agarwal, who is the wife of Sri Bhartendu Agarwal is also supporting them. The fourth remaining member, Dr. Pooja Agarwal, is the wife of Mr. Pankaj Agarwal, the petitioner's other son, whose induction has been challenged. It has been held that it cannot said that induction of four-five members in the Society by the time-barred Committee of Management in violation of bye-laws of the Society does not affect the rights of the petitioners, who are Founding Member and Life-Member of the Society. Their right to maintain these writ petition has been upheld.
54. Under the registered bye-laws of the Society there is no provision for induction of a primary member, a ordinary member or a life time member. Mr. Pankaj Agarwal is said to have been inducted as a life member. Apart from Mr. Pankaj Agarwal, all other members are alleged to have been inducted as ordinary or general member. The date of induction is not known. The Deputy Registrar has not even enquired as to under which provision of the bye-laws Mr. Pankaj Agarwal was inducted as a life member of the general body of the Society. Bye-law 5.2 merely states that following are the life members of the Society at the time of foundation of the Society. It does not contain any provision under which a person can be inducted as a life member subsequently. It refers to one other kind of membership i.e. honourary member. Bye-law 5.2 states that the President has a right to nominate a person from time to time as honourary member and likewise withdraw such nomination at any time. Thus, honourary membership is at the discretion of the President. In this case, after 2008, there was no validly elected President, therefore, no honourary member could have been inducted. The petitioner has denied having inducted Mr. Pankaj Agarwal and other four persons as members. There is no provision for induction of an honourary member by the general body. The power and duties of the general body do not mention the power or duty to enroll new members, neither a life-time member or ordinary member. Even assuming that this could be done by the general body, there were no proceedings of any meeting of the general body showing induction of any member and none has been referred by the Deputy Registrar in his impugned order.
55. The executive body i.e. the committee of management is empowered to approve the terms and conditions of the membership of the Society under bye-law 10(f)(iv). After the year 2008, there was no validly elected executive body. Even otherwise, there is no documentary proof to show any such approval of the terms and conditions of the member-ship of the Society or of the new members having been inducted. The induction of as many as four-five members has a significant bearing upon the management of the Society. In absence of cogent, documentary evidence to establish such induction, it would be highly inequitable and dangerous to decline to entertain the writ petition at the behest of the aggrieved members of the Society. A Division Bench of this in Ratan Kumar Solenki Vs. State of U.P. Others Court, 2010(1) ADJ 262 has held as under:-
"24. What is discernible from the above discussion is where the right of an individual is affected or infringed, and, he has no other effective remedy, if such rights of the individual concerned are borne out from the statute or the provision of bye-laws etc. having the flavour of statute, a writ petition at his instance may be maintainable subject to attracting the condition where the Court may decline to interfere namely availability of alternative remedy, delay, laches etc. but where a legal right of an individual is not directly affected, a writ petition expousing the cause of the collective body or other members of the collective body would not be maintainable at the instance of an individual who himself is not directly affected. We may add here that in a given case, if it is found that an election was held by an imposter and he is supported by DIOS or other educational authorities, such an action of DIOS as also the election can be challenged by the individual member since it cannot be said that he is not a person aggrieved but whether a writ petition at his instance would be maintainable or he can challenge the election by filing a civil suit etc., would be a different aspect of the matter and has to be considered in each and every case considering the facts, relevant provision and other relevant aspects of the matter."
(underline supplied)
56. In Prem Prakash and others Vs. State of U.P. and others Special Appeal No. 307 of 2015 a Division Bench of this Court after considering various judgments on the subject including, Ratan Kumar Solanki's case (supra), while considering the locus of the members of a society to maintain a writ petition has observed as under: -
"These observations indicate that the view of the Division Bench was that where a legal right of an individual is not directly affected, a writ petition espousing the cause of the collective body or of the members of the collective body would not be maintainable at the instance of an individual who himself is not directly affected. In the present case, it is not appropriate to hold that the appellants would not be directly affected having due regard to the case of the appellants that they are members of the society and sought to question the legality of the list of members on the basis of which the elections were held. (emphasis supplied) Particularly having due regard to the earlier orders passed by the learned Single Judges on 3 July 2013 and on 22 January 2014, recognizing the right of the appellants to have their grievance ventilated before the Regional Level Committee, it would not be appropriate for this Court to adopt a different position.
A similar situation had in fact emerged before the Division Bench in Nazimuddin vs. State of U.P. and others.
We must of course note that the basic issue as to whether writ proceedings should be entertained in a situation, such as the present, is a different matter altogether. The judgment of the Division Bench in Ratan Kumar Solanki (supra) which has been extracted above also indicates that the locus of an individual to move the Court is an issue which is quite distinct from the maintainability of the writ proceedings."
The Division Bench has held that members of a society, who challenge the legality of the list of members on the basis of which elections were held, did have locus and, it could not be said that they were not affected persons. To this extent, it disapproved the judgment of the Single Judge, though looking into the disputed questions of fact involved, it upheld the judgment of the learned Single Judge relegating the appellants to the civil Court.
57. If it is found that four new members had been inducted as in terms of the Act and the bye-laws or they could not have been inducted and they have participated in the election and come to occupy the post of its office- bearers based on an illegal election, it would amount to an impostor, usurping the society. Out of ten valid members declared by the Deputy Registrar, the membership of four is in dispute, which has an impressionable impact on the election. In the present case, as noticed above, the membership of the general body is a very small and one of them had died, leaving behind six members. Out of remaining six members, one is said to have resigned. The induction of as many as four members, without there being any provision, no date of their induction having been found on record nor any documentary proof to support the induction is available, it cannot be said that the petitioner, who is a life-time and founder-member of the Society or his son, who is also a life-time member, their rights are not being affected especially in view of the Division Bench judgment in Prem Prakash's case. This Court vide order dated 07.01.2016 has, therefore, rejected the submissions that the writ petition is not maintainable at their behest and the petitioners has no locus has been rejected. I am in complete agreement with the reasoning and conclusion arrived at in the order dated 07.01.2016 passed by this Court.
58. In respect of third objection, this Court in order dated 07.01.2016 has opined that once the Deputy Registrar, after complying with the statutory provisions and considering the material placed before him, decides a dispute regarding membership of the general body and notifies the final list of members of the general body for the purposes of election then the High court under Article 226 of the Constitution should be reluctant to interfere in such a matter as ordinarily it involves disputed questions of facts and in such cases the remedy is before the Civil Court. However, the issue is required to be considered in the facts and circumstances of a particular case and not in a mechanical manner. The question to be considered is whether in the facts and circumstances of the present case, the parties ought to be relegated to the remedy available before the Civil Court and in doing so, whether it will result in miscarriage of justice.
59. The Court is concerned with the exercise of jurisdiction by the Deputy Registrar. Had the Deputy Registrar exercised his jurisdiction as per statutory requirements, then merely because a better view was possible or the decision suffered from a judgmental error, this Court would not have interfered, if disputed questions of fact were involved and would have relegated the matter to the Civil Court. However, in the present case, admittedly, the Deputy Registrar, while passing the impugned order, has considered and based his decision upon two pieces of documentary evidence, which were filed after he had already reserved his decision on 17.08.2015, without providing a copy thereof to the petitioner, the complainant, and without giving him opportunity to rebut the same. Once such piece of documentary evidence is an alleged resolution sent to the Bankers of the Society, which allegedly contains the signatures of petitioner as also Mr. Pankaj Agarwal, his son, whose membership along with membership of four others, is disputed. Though, this piece of evidence was summoned by the Deputy Registrar prior to reserving his decision, but the same was received by him afterwards. The other piece of evidence is an affidavit dated 28.06.2015 filed by Mr. Banwari Lal Kanchhal, explaining that his resignation dated 18.05.2015 was only from the post of Vice-President and not from the life-membership of the Society and that emotional pressure was exerted for doing so. Prior to 17.08.2015, this explanation had not been offered by Mr. Banwari Lal Kanchhal. Thus, there are two pieces of evidence relied by the Deputy Registrar behind the back of the petitioner. Consideration of aforesaid documents by the Deputy Registrar in his impugned order is against all cannons of fair play and natural justice.
60. There are certain other undisputed facts, which are adequate not to relegate the parties to the remedy before the Civil Court. Admittedly, no elections were held by the outgoing committee of management till expiry of its term in December, 2008. It being so, it became time-barred in view of Division Bench Judgment of this Court in Committee of Management of Adarsh Shiksha Niketan and another vs. Assistant Registrar, Firms, Societies and Chits and others reported in 2000 (2) U.P.L.B.E.C 1600. The committee of management, having become time-barred, was not competent to hold the elections after expiry of its term and the only option available was to hold it under Section 25(2) of the Act, 1860. A time based Committee of Management could manage the affairs of the Society with regard to the routine functions, but could not have enrolled any new member as it would have a bearing on the next election and would be beyond its jurisdiction and against the bye-laws of the Society. Same view has been taken by a Division Bench of this Court in 'Committee of Management Munshi Ramsukh Uchhattar Madhyamic Vidyalaya and another vs. State of U.P. And others' Special Appeal No. 409 of 2015. Thus, in absence of specific denial to the factual allegations in the writ petitions by the respondents, it cannot be said that the writ petitions involve disputed questions of fact which can not be decided under Article 226 of the Constitution of India. This Court cannot shut its eyes to the apparent omissions in the impugned order passed by the Deputy Registrar and non-compliance of the statutory requirements by him. The Society cannot be allowed to be usurped by outsiders. The writ petitions cannot be thrown out on mere technicalities and the petitioners should not be relegated to the remedy of civil Court. Further, order dated 07.01.2016 has become final and same issues need not to have been raised during final hearing.
61. After three issues having got decided in respect of the maintainability of these petitions before this Court, two other issues on merit are; whether the four members, enrolled after the year 2008 by the time-barred Committee of Management, are the valid members of the Society; and whether the resignation of Mr. Banwari Lal Kanchhal dated 18.05.2015 was from the post of Vice-Chairman and also from life-member of the Society.
62. I will deal with the first question of resignation of Mr. Banwari Lal Kanchhal on 18.05.2015 from the Society.
63. Mr. Banwari Lal Kanchhal has filed three affidavits before the Deputy Registrar in the proceedings. Those affidavits are dated 16.07.2017, 11.08.2015 and last one is of dated 25.08.2015 after the order was reserved by the Deputy Registrar on 17.08.2015. In his two affidavits dated 16.07.2017 and 11.08.2015, Mr. Banwari Lal Kanchhal did not dispute his resignation from the post of Vice-Chairman and Life-Membership of the Society. He only said that the resignation was taken by putting emotional pressure on him by the petitioner. The affidavit dated 16.07.2017 was not even signed by him. The affidavit dated 25.08.2015, which was filed by him before the Deputy Registrar after the hearing got concluded on 17.08.2015 and without serving copy thereof upon the petitioner, has been placed on record as Annexure CA-16 to the counter affidavit filed on behalf of respondent no. 4.
64. The perusal of the aforesaid affidavit would show that it has been said that Mr. Kanchhal had resigned from the post of Institute/Membership on 18.05.2015 under emotional pressure, which he had denied. However, word 'Membership', which finds place in paragraph-1 and 3 of the aforesaid affidavit, has been struck off by pen. Mr. Banwari Lal Kanchhal is not a juvenile. He has been Member of Parliament and is a well established businessman. The stand that the resignation was taken from him on emotional pressure cannot be accepted. Further, the affidavit dated 25.08.2015, which was filed after hearing got concluded on 17.08.2015 before the Deputy Registrar, is nothing but an afterthought attempt to justify his and other respondents' stand that he did not resign from the membership of the Society. As mentioned above, there is no provision for acceptance of the resignation. A member once resigns from the Society, his resignation becomes final. Thus, it is to he held that Mr. Banwari Lal Kanchhal resigned on 17.08.2015 and that the resignation became final and he is no longer member of the Society after his resignation on 17.08.2015. His affidavit dated 25.08.2015 cannot be believed. It has never been his stand earlier that he had resigned only from the post of Vice-President and not from the Membership. A bare perusal of the affidavit would show that at three places words 'Vice-President/Membership' find place, but word 'Membership' has been struck off by pen. If he had resigned only from the post of Vice-President of the Society, there was no occasion for him to mention in affidavit 'Vice-President/Membership'. He would have said that he had resigned only from the post of the Vice-Presidentof the Society. The Deputy Registrar ought not to have accepted this third affidavit filed on 25.08.2015 after conclusion of hearing on 17.08.2015 he reserved the order. This affidavit dated 25.08.2015 was filed before the Deputy Registrar without serving a copy thereof on the petitioner. Therefore, this Court has no hesitation in holding that Mr. Banwari Lal Kanchhal ceased to be a member of the Society w.e.f. 18.05.2015 i.e. the date of his resignation.
65. The second issue is being decided in the backdrop of the legal and factual aspects already enumerated herein-before. When no elections were held since 2008, it is inexplicable as to how the list of office-bearers of the committee of management and members of the general body could have been submitted by the respondent no.4 in December 2015 that too for the years 2008-09 2009-10, 2010-11, 2011-12, 2012-13, and 2013-14 enbloc. There was no validly elected committee of management, therefore, no list of office-bearers of the committee of management could have been prepared or submitted. All these documents had been accepted by the Registrar without any inquiry, giving a complete go-bye to the provisions of Section 4 of the Act, 1860. No notices were issued on these lists. The Deputy Registrar, while taking the impugned decision, has gone ahead and based his decision to a great extent on these very lists. These lists were dehors the provisions of Act, 1860 and did not have any legal value, therefore, they also did not have much evidentiary value. There is no document to prove that when a new member was enrolled as a member of the general body and who enrolled him and, mere fact that one of such member's name finds place as office-bearer has no significance.
66. The observation of the Deputy Registrar that the Committee of Management could manage the affairs of the Society even after it had become time-barred is in the teeth of the Division Bench judgments cited hereinabove. The Deputy Registrar has based his decision on a misplaced reliance upon a decision of this Court in Committee of Management A.K. College Shikohabad vs. State of U.P. And others reported in 2000(18) LCD 1258. The said decision cannot be understood to be laying down any such proposition of law that such a time-barred committee of management could also enroll a new member of the general body of the society.
67. The Deputy Registrar, while determining the dispute of membership of the general body of the Society, has not kept in mind the parameters laid down by the statute itself vide Section 4-B of the Act, 1860, which had already come into force on 09.10.2013 as also Section 15 of the Act 1860. He has completely over-looked these requirements under these provisions. Even though, he has mentioned Section 15, but he has failed to assess the matter on its anvil. The Deputy Registrar has not given any finding regarding when these four-five members were inducted to the general body in absence of an elected committee of management and who inducted them? He has not referred to any proceeding containing the decision to induct these persons as members of the Society. The Deputy Registrar has not referred to any provision in bye-laws of the Society for induction of life-member in the Society or for induction of an ordinary member. From the documents submitted before the Registrar and this Court, there is no proof of their induction in the light of Section 4-B and 15 of the Act, 1860.The Deputy Registrar has persuaded himself by resolution sent by the Society's Bankers, which, in fact, was taken by him on record after reserving his decision. Therefore, unless the aggrieved parties were confronted with the same, it could not have been relied upon. Likewise, the Registrar placed reliance upon the affidavit of of Mr. Banwari Lal Kanchhal, which has been taken on record after reserving the order by him, without affording opportunity to the aggrieved person to see it and rebut the same.
68. It appears that the Deputy Registrar got carried away by mentioning some of names of new inductees in the list of the members of the general body submitted for the year 2008-09 to 2013-14 which was submitted enbloc in December, 2013. The Deputy Registrar did not even call for the original record such as the roll of members of the general body etc. in terms of Section 4-B and 15 of the Act, 1860. The list of members of the general body was required to be signed by two office-bearers and two executive members of the Society. In absence of any valid election, who could have signed these lists? No evidentiary value can be attached to these lists in the eyes of law. The Deputy Registrar believed the documents submitted by respondent no. 4 wholly valid and truthful and was persuaded by the fact that no objection was raised by the petitioner since 2008. There is no estopple against the law. The statute itself has laid down the parameters for determining such disputes. The Deputy Registrar is required to exercise his jurisdiction in the light of the statutory requirements and not merely on inferences, conjectures and presumptions. The exercise of the powers by the Deputy Registrar, while passing the impugned order, is not in terms of the statutory prescription.
69. Neither any document has been placed on record nor the counsels, representing the respondents, have been in a position during the course of their arguments to state before this Court that when the disputed members were enrolled as members of the general body. When the question was asked about the enrollment of the disputed members as members of the general body of the Society, and proceedings regarding the decision to induct them, they tried to shift the burden upon the counsel representing the petitioner by saying that he has got all records with him. If the respondent no. 4, who was acting as Secretary since 2008, has been moving all applications before the Deputy Registrar, then it cannot be believed that the documents had been kept with the petitioner and not with him. Even otherwise, normally the Secretary keeps the record. Neither the respondents nor the new members, whose membership is disputed, are able to inform this Court about the date on which these four persons were inducted as members and the provision under which this was done or when was the decision taken to enroll them as members of the Society.
70. The respondents have not denied that Dr. S.P. Dixit died on 25.12.2011 and Nagar Nigam supplied certificate of death of Dr. S.P. Dixit, which bears the date as 26.12.2011. However, the death certificate of Dr. S.P. Dixit was filed by the respondent No. 4 in the office of Deputy Registrar on 24.12.2013 and the same bears the date of issue as 26.12.2013.Thus, the respondent No. 4 submitted a forged document before the Deputy Registrar regarding the death of Dr. S.P. Dixit and the Deputy Registrar, ignored the fact regarding forged death certificate of Dr. S.P. Dixit and proceeded to hold the membership of Pankaj Agarwal as valid on the ground that he was inducted in place of Dr. S.P. Dixit.
71. Once it has been held that the Committee of Management of the Society became time-barred in the year 2008, it could not have inducted new members. This Court in Committee of Management, Munshi Ramsukh Uchhattar Madhyamik Viddayalaya and another Vs. The State of U.P. and others, Special Appeal No.409 of 2015 has answered the question whether a time-barred Committee of Management can enroll new member(s) in following manner:-
"The question before the Court is as to whether the time barred Committee of Management can proceed to exercise the powers vested in the Committee of Management. The term of validly elected Committee of Management had expired in the year 2011. The time barred Committee of Management, therefore, was not having any right to induct any member in the year 2015. The respondents were also not having any right to induct any member in the Committee of Management which was time barred. The dispute in regard to the induction of new members in the present scenario should not be permitted to prolong. If we allow the process of election with members who were inducted by the time barred Committee of Management, then it would be an invalid process and the election would not be possible in accordance with law. There is no dispute between the parties that there was any induction of the membership between the year 2008 to 2011. The Committee of Management was validly elected in the year 2008. Once the Committee of Management was validly elected then it has to be presumed that the valid members of the Committee of Management were existing at that particular point of time. The dispute between the parties is regarding induction of the members of their interest. The appellant as well as the respondents both proceeded to induct members on the assumption that the power is vested with them to induct the members. But in order to resolve the dispute, we have to consider the case that the dispute in regard to the induction of members may not come in the way of holding election.
Since there is no dispute in regard to the powers of Committee of Management whose term expired in the year 2011, the induction of members by either of the parties would be without authority of law and the time barred Committee of Management would not be able to undertake such exercise. The question of inviting objection to the list of members would arise when there was a power to induct members after the expiry of the term of the validly elected Committee of Management."
72. It is well established that the bye-laws of the Society have to be followed strictly and nothing can be added or supplemented in the bye-laws. Members can be inducted as per the provisions of the bye-laws of the Society and Section 15 of the Act, 1860. From the reading of the bye-laws of the Society, it is evident that the President, who is the petitioner, has power to nominate any life-member as founder member and also induct any person as honourary member. There is no provision in the bye-laws of the Society for inducting a person as a life-member of the general body of the Society or the committee of management. Section 15 of the Act, 1860 reads as under:-
"15. Member defined disqualified members.--For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
but in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months."
73. Thus, the statute also provides that member of the Society shall be one, who has been admitted in the Society according to the rules and regulations of the Society. From the reading of Section 15 along with the bye-laws of the Society, it is evident that the new members have not been inducted in accordance with the bye-laws of the Society. Section 4-B has been inserted in the Act, 1860 by means of State Amendment which provides that at the time of registration/renewal of the Society, list of members of the general body of the Society shall be filed with the Registrar, mentioning the name(s), particulars and occupation of members. The Registrar is under a statutory obligation to examine the correctness of the list of members of the general body of such society on the basis of the register of the members of the general body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the Society. As per sub-section (2) of Section 4-B of the Act, 1860, if there is any change in the list of members of the general body of the society referred to in sub-section (1), on account of induction, removal, registration or death of any member, a modified list of members of general body shall be filed with the Registrar within one month from the date of change. Sub-Section (3) of Section 4-B of the Act, 1860 provides the list of members of the general body to be filed with the Registrar shall be signed by two office-bearers and two executive members of the society. In case any dispute arises subsequent to registration/renewal of the society regarding membership of the Society, the Registrar is required to examine the correctness of list of the general body on the basis of register of the members of the general body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society. In Anjuman Farogh-E-Islam Vs. State of U.P. and others, (2014(5) ADJ 673, it has been held that the provisions of Section 4-B have to be complied with by the Registrar while finalizing the list of the general body of a Society. Paragraphs 20-26 of the judgment in Anjuman Farogh-E-Islam Vs. State of U.P. and others (supra) read as under:-
"20. From a perusal of the impugned order it is evident that while accepting the membership of 13 new persons he has not examined the fact whether they were enrolled in terms of the bye-laws of the Society or not. There is only a casual reference that from the original records it is clear that they are members. He has not even mentioned that his finding about these members is based upon which document, neither there is a reference of document or original record in the impugned order. In fact he has only recorded his conclusion without support of any reason.
21. Regard being had to the fact that the State Government has recently made an amendment by U.P. Act No. 23 of 2013, the Societies Registration (Uttar Pradesh Amendment) Act, 2011, wherein Section 4-B has been inserted. The said amendment reads as under;
"4-B(1) At the time of registration / renewal of a society, list of members of General Body of that society shall be filed with the Registrar mentioning the name, father's name, address and occupation of the members. The Registrar shall examine the correctness of the list of members of the General Body of such society on the basis of the register of members of the General Body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society.
(2) If there is any change in the list of members of the General Body of the society referred to in sub-section (1), on account of induction, removal, registration or death of any member, a modified list of members of General Body, shall be filed with the Registrar, within one month from the date of change.
(3) The list of members of the General Body to be filed with the Registrar under this section shall be signed by two office bearers and two executive members of the society."
22. Prior to the insertion of Section 4-B there was no provision under the Act 21 of 1860, which empowers the Deputy Registrar / Assistant Registrar to require the office bearers to submit the list of general body. Under the unamended Section 4 the Act 21 of 1860, the Society was required to submit only a list of office bearers and name of the members of the general body. It did not require the list of the general body. In view of absence of any provision under the Act 21 of 1860 with regard to the submission of general body. Whenever the dispute arose with regard to the office bearer of the Society the rival factions rely on the list of general body submitted by them. Thus the serious dispute about the validity of the members arises. This Court is also burdened with the large number of the writ petitions, wherein the disputed question of fact about the enrollment of the members of general body is raised.
23. Keeping in view of the said problem the State Government has inserted Section 4-B of the Act 21 of 1860. The object and reasons of the said Act noticed the fact that at present a large number of the Societies are disputed due to non-existence of correct list of the general body to the Registrar. It is also stated in the objects and reasons that in several cases on the basis of the fake documents produced by the claimants it becomes difficult to decide the matter. The relevant part of the Statutes of object and reasons of the U.P. Act No. 23 of 2013 reads as under;
"Prefatory Note- Statement of Objects and Reasons.----................ At present, a large number of societies are disputed due to non-existence of its correct list of General Body with the Registrar. In several cases, an illegal person, fraudulently, produces before the Registrar an incorrect list of General Body of the society and claims to be the member or office bearer of such society. In order to avoid such situation, it has been decided to amend the said Act in its application to Uttar Pradesh, to insert a new Section 4-B, to provide for filing of the list of General Body with the Registrar at the time of registration or renewal of such society.
24. From a plain reading of Section 4-B of the U.P. Act 2013 of it is discernible that now all the Societies at the time of the registration or renewal of certificate, as the case may be, are required to submit a list of members of general body alongwith their required documents. The Registrar has been empowered to examine the correctness of a list of members of general body on the basis of register of members of general body, Minute Books, Cash Book, Receipt book of membership and Bank etc. of the Society. It further requires that if there is change in the list of the members of the general body of the Society due to enrollment of new members, bare resignation or removal, the modified list of members of general body is required to be filed with the Registrar within one month from the date of the change.
25. From the aforesaid amendment it is also evident that the intention of the legislature is to minimize the dispute of the Societies as in the most societies the disputes are with regard to validity of enrollment of the members and the election held on the basis of disputed members.
26. The requirement of Section 4-B of the U.P. Act No. 23 of 2013 is for all the Societies at the time of registration / renewal of a Society, therefore, requirement under Section 4-B of the U.P. Act No. 23 of 2013 can be applied in pending cases also. If there is a dispute with regard to the enrollment of the fresh members, the Registrar can direct the parties concerned to produce the minutes book, cash book, membership fee receipts etc. to establish that the enrollment was in terms of the bye-laws. If the Registrar examines the validity of the enrollment of the members on the basis of the aforesaid documents, it would ensure that rank outsider could not be able to control the affairs of the Society on the basis of fake documents."
74. The Deputy Registrar has not cared before finalizing the members of the Society to consider the membership of the Society as per provisions of Section 4-B of the Act, 1860 and, thus, the impugned order suffers inasmuch as it has been passed without considering all aspects of the statutory prescription as provided under Section 4-B of the Act, 1860 and list of members has been finalized in violation of the statutory requirement.
75. Even assuming that the petitioner has participated in the affairs of the committee of management after it became time-barred. Any act done by the committee of management in violation of the statutory provisions or bye-laws of the Society, cannot make them valid and according to law merely on the ground that the petitioner has himself participated in the business allegedly conducted by the Committee of Management of the Society. Therefore, the finding of the Deputy Registrar that the petitioner has consented and acquiesced to the action of the committee of management after it became time-barred by participating in the same, is absolutely incorrect and against law. The Supreme Court in M/s Elson Machines Pvt Ltd. Vs. Collector of Central Excise, 1989 Supp (1) Supreme Court Cases 671 in paragraph-10 has held that there cannot be any estopple against law. The paragraph-10 is extracted hereunder:-
"10. The next submission on behalf of the appellant is that the classification lists had been approved earlier and the excise authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected."
76. Similar views have been expressed by the Supreme Court in Jalandhar Improvement Trust Vs. Sampuran Singh, (1999) 3 SCC 494 in paragraph-13 and Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society, Jaipur and others, (2013) 5 SCC 427 in paragraph-34.
77. Section 25(2) of the Act, 1860, as amended in its application to U.P., provides as under:-
"25. Dispute regarding election of office-bearers:-
1..........................................
2. Where by an order made under sub-section (1), an election is set-aside or an office-bearer is held no-longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the rules of that society, he may call meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorized by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications."
78. Thus, under the provisions of Section 25(2) of the Act, 1860, as modified in U.P., the Registrar is empowered to call the election meetings where elections have not been held within the specified time as the rules/bye-laws of the society. He, however, does not have power to deviate from the bye-laws of the society or to provide different procedure altogether than the procedure which is prescribed in the bye-laws subscribed by the members and certified by the Registrar himself. Section 25(2) of the Act, 1860 requires the elections to be held in a meeting of the general body of the Society. This Court in Dayal Chand Jain Vs. Assistant Registrar, Firms Societies and Chits and others, 2008 (6) ADJ 401 has dealt the scope of Section 25(2), as amended to State of U.P., in paragraphs 13-17 as under:-
13. Section 25 (2) of the Act as modified in U.P., does not amend the bye-laws of the society. Where a different or modified procedure is contemplated, the Registrar must spell it out in his order. The modified procedure may modify the procedure of elections for convenience or necessity of time, place or manner. By these modifications, however, he is not empowered to change or alter the method of elections provided in the bye-laws, such as number of posts of office-bearers, the electoral body or a meeting of such electoral body to hold elections. The bye-laws of the Samiti provide for elections in the general meeting of the life members of the society which may be called for the purpose of holding elections as provided under Rule 2 of Chapter-V of the bye-laws. The procedure for convening the general meeting is prescribed in the bye laws. The bye-laws take care of quorum under Rule 7 for the meetings, other than election meetings, and proxies under Rule 8 of Chapter-V of the bye-laws.
14. The Registrar has powers to call the election meeting, where elections have not been held within the time specified in the rules of the society. He however does not have powers to deviate from the bye-laws or to provide a different procedure altogether than the procedure which is given in the bye-laws subscribed by the members and certified by the Registrar himself. The members have agreed to elections in a meeting. Section 25 (2) of the Act also requires the elections to be held in a meeting of the general body of the society. Where any modifications are prescribed by the Registrar, it must be notified to the members of the society. Section 25 (2) does not authorise the Registrar to carve out an entirely different procedure in which he may dispense with the meeting and directly ask the electors to file their nominations and cast their ballots. The election programme announced by the Assistant Registrar does not provide for any meeting.
15. Unlike the elections for choosing representatives by a larger electorate, the elections of officebearers of Societies and Companies are held in meetings, if they are due after discussing the performance of the outgoing office-bearers, finalising accounts, and the business on the agenda. The method and manner of elections by large electorate choosing a representative, and a small group of electors (eighteen in the present case) to elect office-bearers to constitute the Executive Committee is entirely different. The Assistant Registrar, Firms, Societies and Chits, Allahabad has not appreciated the functioning of charitable and educational societies, and has mixed up the method of holding elections of public representatives, with the elections of the office-bearers of a society.
16. The elections of the officebearers of a society like in the present case, are required to be held in a meeting. The object of convening general body meeting is to discuss the affairs of the society, its accounts, the activities, plans and to allow the members to exchange their views. The election of the office-bearers of a society is not an election to any political office or an election to elect a representative of the electors. The election programme announced by the Registrar in this case does not provide for meeting of the life members at all. It only provides for filing of nominations, scrutiny, withdrawal of nominations, publication of the list of valid members, casting of ballots, counting and declaration of results. The scheme is similar to holding elections of Members of Parliament or Legislative Assembly. A society does not function or elects its officebearers, in such a fashion.
17. A 'meeting' is defined in THE LAW LEXICON by P. Ramanatha Aiyer: 'Coming together of persons generally for common purpose or common consultation. An Assembly 'the word 'Meeting' implies a concurrence or coming face to face, of at least two persons (per Coleridge, C.J. in Sharpe v. Dawes, 46 LJ QB 104) 'Assembling of a number of persons for discussions and acting up on some matter of common interest ; sitting on a particular session.' Where the members constituting a society decide in its bye-laws to hold elections in a meeting, the Registrar is not authorised in exercise of powers under Section 25 (2) of the Act, modify and that too impliedly the procedure to elect the office-bearers of the Executive Committee by casting ballots without holding any meeting."
79. Thus, from the aforesaid, it is evident that the four members have been inducted against the provisions of bye-laws of the Society as well as the statutory prescription. Their induction in the Society has not been substantiated by producing cogent and credible evidence regarding date of their induction, resolution and ratification etc. Therefore, they cannot be treated to be validly inducted members of the Society. So far as the question of Mr. Pankaj Agarwal is concerned, the induction appears to be based on the forged death certificate of Dr. S.P. Dixit and, therefore, his induction is also wrong, illegal and unsustainable. In respect of Mr. Banwari Lal Kanchhal, it has already been held in the preceding paragraphs that he resigned from the membership of the Society and his affidavit filed on 25.08.2015 is an afterthought attempt to continue his presence in the Society, which cannot be accepted. In view thereof, at present there are only five members of the Society. To save the Society from extinction, there have to be at-least seven members in the Society. If the membership is reduced below to seven members, the question arises how the Society can remain in existence. This Court faced with such a situation has answered the question in Committee of Management, Sarvodaya Post Graduate College Vs. State of U.P. and others, 2011 (29) LCD 272, paragraphs 21-25 of which are extracted hereunder:-
"21. The question that now arises is about the alternative argument raised by Sri Shekhar and as accepted by Sri Ojha. The Court has been placed in a piquant situation where only two members, Har Govind Prasad and RamBilas Pandey are still stated to be surviving members of the general body.
22. The Apex Court in the case of B.P. Achala Anand Vs. S. Appi Reddi & Anr., JT 2005 (2) SC 233, has given an indication that the Courts in extraordinary situation can apply their legal tools to provide extraordinary remedies.
Paragraph 1 of the decision is as follows:
"1. Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by courts, transforms into justice. "The definition of justice mentioned in Justinian's Corpus Juris Civilis (adopted from the Roman jurist Ulpian) states 'Justice is constant and perpetual will to render to everyone that to which he is entitled.' Similarly, Cicero described justice as 'the disposition of the human mind to render everyone his due'."
The law does not remain static. It does not operate in a vacuum. As social norms and values change, laws too have to be reinterpreted, and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts. Lord Denning once said : "Law does not stand still; it moves continuously. Once this is recognised, then the task of a judge is put on a higher plain. He must consciously seek to mould the law so as to serve the needs of the time."
23. The aforesaid decision has already been discussed and followed in the case of Balbhadra Pandey Vs. State of U.P. & others, decided on 10.11.2010 in Special Appeal No. 1380 of 2010.
24. Applying the aforesaid principles this Court finds it necessary that in order to save the society from any dissolution and to provide for a mechanism so as to constitute the general body as well as the committee of management it would be in the fitness of things to accept the alternative argument of Sri Shekhar which has also been consented to by Sri R.K. Ojha. Accordingly, the Sub Divisional Magistrate Ghosi who is an Ex Officio Member of the Society shall with the consulation of the two surviving members, Sri Har Govind Prasad and Ram Bilas Pandey proceed to amicably consider and resolve to enrol members of the general body to a minimum that may be required for the purpose of holding elections of the committee of management. Such enrolment shall be in accordance with the Bye-laws and in accordance with the wishes of the other two surviving members of the society. Once, the general body is constituted to the minimum which is required for holding the elections of the committee of management, then the said list shall be forwarded to the Assistant Registrar, Firms, Societies and Chits Funds for his records. The Sub Divisional Magistrate shall accordingly then formulate an election schedule and hold the elections of the committee of management. The Committee so elected, shall be handed over charge after recognition by the Vice Chancellor of the University. The Vice Chancellor of the affiliating University shall pass orders within a period of three weeks of the receipt of the documents in accordance with law and immediately intimate the State Government about the same. With the recognition of such a committee of management the appointment of the Authorized Controller shall seize and in the event such committee is recognised prior to 28th June, 2011, then order dated 28th July, 2010 would stand quashed allowing the newly elected committee to take over charge.
25. With the aforesaid directions all the writ petitions stand disposed of."
80. This Court in Committee of Management, Captain, Shankar Dhwaj Audhyogik Vidyalaya and another Vs. State of U.P. and others, Special Appeal No.193 of 2017 has held as under:-
"In order to save the society from dissolution and to provide for mechanism so as to constitute the general body as well as the Committee of Management, this Court in the case of C/M Sarvodya Post Graduate College Vs. State of U.P., Writ No. 60164 of 2010, decided on 09.12.2010 has taken the view, that enrollment can be carried out by surviving members to the minimum that may be required for holding the elections of Committee of Management as per the bye-laws. We also endorse the same view. It may be true that under the Societies Registration Act, 1860, faced with such a situation, there is no requirement of any prior permission from the Assistant Registrar, Firms, Societies & Chits before the surviving members proceed to enroll life members/members of the general body of the Society, but once the entire foundation and basis is based on permission and the said permission is not at all available on record, and is not credible one, then the exercise, that has been so undertaken in reference of enrollment of members, rightly has not been relied upon by the learned Single Judge. Not only this, the surviving members have come forward by taking specific stand that proceedings are nothing but an act of manipulation. Even before us, emphasis has been made on the fact that the surviving members have come forward with the specific case that the entire proceedings are forged and in this regard it has also been contended that a criminal case no. 5780 of 2015 has also been instituted, wherein statement of Raghuraj Singh has been got recorded on 23rd July, 2015 clearly mentioning therein that entire proceedings are forged. Affidavit of surviving members disowning the proceedings has also been relied upon."
81. In view thereof, the Deputy Registrar, Firms, Societies and Chits is directed to call a meeting of the general body of the Society of five members to induct two new members and then hold the election for electing the committee of management. This exercise needs to be completed within a period of one month from today. Mr. Pankaj Agarwal and Mr. Banwari Lal Kanchhal are restrained from acting in any manner and participating in the affairs of the committee of management. Till the election takes place, after inducting two new members, the Deputy Registrar should ensure that the affairs of the committee of management are carried out properly.
82. In the result the impugned order 10th September, 2015 passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow is set-aside. The writ petitions are allowed with further directions given in the preceding paragraphs.
Order Date: 19th August, 2019 [Dinesh Kumar Singh,J]
MVS/-