Allahabad High Court
C/M Sri Vidur Sewa Ashram And 7 Others vs State Of U.P. And 4 Others on 16 March, 2018
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD REPORTABLE RESERVED Case :- WRIT - C No. - 1069 of 2018 Petitioner :- C/M Sri Vidur Sewa Ashram And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajendra Singh Chauhan, Shri H.N. Singh Counsel for Respondent :- C.S.C., Arun K. Singh Deshwal Hon'ble Manoj Misra, J.
The present petition assails an order dated 18.12.2017 passed by the Prescribed Authority/Up Zila Adhikari, Bijnor in Misc. Case No. T2016131601100 of 2015, upon a reference under Section 25(1) of the Societies Registration Act, 1860 (in short the Act, 1860), whereby the election dated 14.08.2014 has been set aside and the Assistant Registrar, Firms, Societies and Chits, Moradabad Region, Moradabad (in short Assistant Registrar)has been directed to hold fresh election on the basis of list of members of the general body which was finalized by the Assistant Registrar as per order dated 12.10.2012.
A brief narration of background facts would be apposite. There is a society by the name of Sri Vidur Sewa Ashram, Dara Nagar Ganj, Bijnor (in short the Society), which is registered under the Act, 1860. The said society has established an intermediate college by the name of Sri Vidur Guru Grih Inter College, Dara Nagar, Vidur Kuti, Bijnor (in short the college or institution) which is recognized as well as aided and is governed by the provisions of U.P. Intermediate Education Act, 1921 (in short Act, 1921) and U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (in short Act, 1971).
The general body of the Society and the college is common. The term of office-bearers of the Society is three years. The last undisputed election of the office-bearers of the Society was held in the year 2000 with general body comprising of 800 members.
In respect of election of the committee of management of the college held in the year 2009 with general body comprising of 389 members, a dispute had arisen, which came for adjudication before this Court in Writ C No. 25704 of 2011 along with Writ C No. 28467 of 2011. Both petitions were allowed by order dated 12.01.2012. As a result the election dated 07.05.2009 and its approval was set aside with direction to the Joint Director of Education, Moradabad (in short the Joint Director) to finalize the electoral roll on the basis of the membership list of the year 2000, having regard to the Scheme of Administration and the order of Commissioner dated 31.12.2003 and, thereafter, hold election. It was also provided that till elections are held, there shall be an authorized controller appointed in the institution.
As the election of the office-bearers of the Society had also become over due, the Assistant Registrar, vide order dated 12.10.2012, declared the committee of management of the Society as time barred and decided to hold election of the office-bearers of the Society under Section 25(2) of the Act, 1860, with an electoral college that was to be determined by the Joint Director as per the order dated 12.01.2012 passed by this Court in Writ C No.25704 of 2011.
On 19.03.2013, the Joint Director determined the electoral college comprising of only those members who had participated in the last undisputed election of the year 2000. On the basis of that electoral college, election of the committee of management of the college was held on 25.04.2013 which was approved by the Regional Level Committee vide order dated 15.06.2013 against which Writ C No. 44197 of 2013 is stated to be pending without any interim order.
In the meantime, as no election of the Society was held, Writ C No. 19740 of 2014 was filed before this Court for a direction upon the Assistant Registrar to hold election under Section 25(2) of the Act, 1860. The said petition was disposed of by order dated 03.04.2014 requiring the Assistant Registrar to hold election, preferably, within a period of three months from the date of communication of the Court's order.
Pursuant to the direction given by this Court in Writ C No. 19740 of 2014, the Assistant Registrar published an election schedule and thereafter published a provisional voter-list by including those members who had participated in the year 2000 undisputed election as well as those additional members who had been allegedly inducted by the Committee after the year 2000 election. After inviting objections on the provisional voter-list, an electoral college comprising of 858 members was determined vide order dated 11.08.2014 and, thereafter, on 14.08.2014 election was held, which returned petitioners' committee of management.
The respondent no.5 along with another filed Writ C No. 48679 of 2014 challenging the election dated 14.08.2014. The said petition was disposed of by order dated 10.09.2014 by leaving it open to the petitioners to avail remedy under sub-section (1) of section 25 of the Act, 1860, by way of reference before the Prescribed Authority, with the support of 1/4th of the members of the Society.
In addition to the above petition, the respondent no.4, namely, Vikash Kumar Agarwal, who had in the meantime been elected as manager of the committee of management of the college, filed Writ C No. 54990 of 2014 challenging the election of the office-bearers of the Society on the ground that the election was not with a correctly determined electoral college. The said Writ C No. 54990 of 2014 was dismissed by order dated 30.10.2014, after noticing the earlier order dated 10.09.2014 passed in Writ C No. 48679 of 2014. While dismissing Writ C No. 54990 of 2014, the Court had dealt with a submission made on behalf of the petitioners that the alternative remedy would not be efficacious as they would not be able to challenge the electoral college before the Prescribed Authority. The said submission was not accepted by the Court. The relevant portion of the judgment dealing with the said submission is extracted below:-
"4. The second submission advanced by Sri Shailendra is that he has challenged the electoral college itself, which issue is not open to challenge before the prescribed authority, therefore, making of a reference is not an effective efficacious remedy available under the facts and circumstances of the case.
5. This Court is not impressed by the argument, inasmuch as Section 25(1)(c) provides as under:-
"25(1)(c). that the result of the election in so far as it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society."
6. The phraseology used by the legislature is in very wide terms and a challenge to the electoral college would always be open for adjudication before the election tribunal. This aspect of the matter can be gone into by the prescribed authority, once a valid reference is made. Moreover, the society itself is governed by its bye-laws and a wrong determination of electoral college would, otherwise, constitute non-compliance of the provisions of bye-laws."
Having been relegated to the alternative forum, a reference application was submitted before the Prescribed Authority under signature of 165 members.
A preliminary objection was taken by the petitioners as regards maintainability of reference application on the ground that it was not filed by one-fourth of the members. It was urged that the Assistant Registrar had determined electoral roll of 858 voters, out of which, if 172 had died, there remained 686 surviving voters, therefore one-fourth of which would be 172. Hence, the reference application would have been maintainable only if it had been filed by 172 or more members. But since the reference application had been presented by only 165 members, out of whom 3 were already dead, and signatures of few were found forged, the reference application was left with support of only 157 members and, therefore, not maintainable.
In response to the preliminary objection, the stand taken by the reference applicants was that all those members who were added after the year 2000 election were not required to be considered as members because this Court had specifically directed, vide order dated 12.01.2012 passed in Writ C No. 25704 of 2011 connected with Writ C No. 28467 of 2011, to finalize the electoral roll on the basis of membership list of the year 2000 by which last undisputed elections were held. Hence, if the electoral list of the year 2000 is taken into consideration, which was of 800 members, out of which 264 had died, the general body comprised of 536 members only, and, one-fourth of which would be 134, therefore the reference application which had the support of 157 members, even if 8 members are excluded from consideration, was maintainable.
The reference-applicants had also urged that as, by order dated 12.10.2012, the Assistant Registrar had already taken a decision to hold election from an electoral college as to be determined by the Joint Director, pursuant to the order dated 12.01.2012 of this Court, the subsequent determination of the electoral college, by adding members over and above the already determined electoral college, was not legally justified as it amounted to review of the earlier order.
The Prescribed Authority on the rival pleadings and submissions framed as many as five issues for determination, namely, (i) whether the reference application was filed by one-fourth of the members; (ii) whether, in view of the direction of the high court dated 12.01.2012, the Assistant Registrar was required to hold election with the list of members from which the election of the year 2000 was held; (iii) whether the voter list on the basis of which election was conducted was a valid voter list; (iv) whether the Assistant Registrar had the jurisdiction to remove 50 members from the final voter list and make casting of votes by 39 members conditional upon showing membership deposit receipt; and (v) whether the election dated 14.08.2014 was in violation of the bye-laws of the society and in violation of the provisions of section 25(2) of the Act. If so, its effect.
The Prescribed Authority decided the issues as follows: (a) that the election was to be held with voter list of the year 2000 election which had 800 members, out of which 264 had died, therefore the remaining alive members were 536, and, one-fourth of which comes to 134, therefore, the reference by 157 members, that is by excluding 8 disputed members out of a total of 165 signatories, was maintainable; (b) that, as per the order dated 12.10.2012 of the Assistant Registrar, the voter list ought to have been same as determined by the Joint Director pursuant to the order dated 12.01.2012 of this court in Writ C No.25704 of 2011, therefore there was no justification to add 110 members in the already determined 800 members voter list and, even otherwise, the members who were shown to have been added, in between the years 2000 and 2003, had produced only photo copy of membership deposit receipts and the names mentioned in the receipt were different from that shown in the voter list finalized, accordingly the voter list of 858 members, from which election was held, was invalid; (c) that the election officer wrongly denied casting of votes by 39 voters by making their participation subject to production of membership fee deposit receipt even though they were already shown members in the year 2000 voter list and further there was no justification to remove 50 members from the voter list; and (d) that the election officer had not properly maintained the record of persons whose nominations were either rejected or accepted.
After holding as above, the Prescribed Authority by the impugned order dated 18.12.2017 set aside the election result dated 14.08.2014 with a direction to hold fresh election.
I have heard Sri H.N. Singh, learned senior counsel, assisted by Sri R.S. Chauhan for the petitioners; the learned Standing Counsel for the respondents 1, 2 and 3; and Sri Arun Kumar Singh Deshwal for the respondents 4 and 5.
Sri H. N. Singh, learned counsel for the petitioners, has submitted that Section 25 of the Act, 1860 has been inserted in the Act, 1860 by state amendment to provide for a forum for redressal of grievance, in a summary manner, of any doubt or dispute in respect of the election or continuance in office of an office-bearer of a society either upon a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh. But, it does not confer any appellate power upon the Prescribed Authority to sit over a decision of the Registrar made in exercise of his power under the statute.
According to him when an election is held under sub-section (2) of section 25 of the Act, 1860, the Registrar, for holding election, has to call for a meeting of the general body. For the purpose of calling a meeting of the general body, he has to determine as to who are members of the general body. Once the Registrar determines the general body of a society for the purpose of holding the meeting, in absence of reference by the Registrar, a reference application, under sub-section (1) of section 25 of the Act, 1860, could be made with the support of 1/4th of the members of the general body as determined in exercise of power under sub-section (2) of section 25 of the Act, 1860. If the reference is not with the support of one-fourth of the members of the general body of the society, as determined under sub-section (2) of section 25 of the Act, 1860, the Prescribed Authority would have no jurisdiction to act upon such reference and test the validity of the election, inasmuch as, the Prescribed Authority does not sit as an appellate authority over decisions of the Registrar but only acts as a Tribunal with limited jurisdiction, which exercises power on fulfillment of certain conditions.
It has been urged by him that since the general body of the society for the purpose of holding election was determined as comprising of 686 members, after excluding dead members from a total of 858 members, the reference application with less than 172 members was not maintainable. As, in the instant case, the reference application, as per the own finding of the Prescribed Authority, was filed by 157 members, it was not maintainable.
The next submission of the learned counsel for the petitioners is that the view taken by the Prescribed Authority that the general body that returned the office bearers in the year 2000 was to be treated as final, with no further addition permissible, is incorrect and is based on gross misinterpretation of the order passed by this court dated 12.01.2012, inasmuch as, this court had only directed the Joint Director to finalize the electoral roll on the basis of the membership list of 2000, having regard to the Scheme of Administration and order of Commissioner dated 31.12.2003, which meant that the electoral roll of the year 2000 was to be taken as a base for determination of the electoral college and not the electoral college in itself.
It has also been submitted on behalf of the petitioners that there was no dispute that in the year 2000 a committee was constituted which remained in control for its term. Therefore the committee so constituted was well within its jurisdiction to induct new members. Hence, the addition of 110 members, after the election of the year 2000, could not have been discarded without proper consideration of their claim, particularly, when their claim had been accepted by the Assistant Registrar vide order dated 11.08.2014.
In the alternative, it has been urged, on behalf of the petitioners, that the decision dated 12.01.2012 rendered by this Court in Writ C No. 25704 of 2011 and 28467 of 2011 was not binding on the Registrar because the said writ petitions had arisen out of an election dispute relating to committee of management of the College, which is governed by a separate scheme of administration, whereas the society has its own separate bye-laws. Therefore, the decision of this court did not take away the power vested in a Registrar to determine membership of the Society.
Sri H. N. Singh placed reliance on decisions of this court, namely, (a) Sri Babu Shiksha Samiti Prasar Samiti v. Deputy Registrar, Firms, Societies & Chits: 2007 (9) ADJ 262 (para 17); (b) Sri Shanker Shiksha Prasar Samiti Sirsani v. State of UP: 2009 (7) ADJ 449 (paras 17 and 18); and (c) Jamia Razjviya Meralul Uloom, Chilmapur, Gorakhpur v. State of UP: 2010 (10) ADJ 84 (DB) (para 18), to contend that the Registrar has the power to determine whether a person is a valid member or not and he need not refer the matter to the Prescribed Authority. By placing reliance on para 18 of the judgment in Sri Shanker Shiksha Prasar Samiti (supra) it has been contended that in entertaining reference, on behalf of one-fourth members of the general body of society, the prescribed authority must satisfy himself that dispute has been raised by one-fourth members of the general body of society who are members in term of section 15 of the Act, 1860, and once satisfaction is recorded on this score, then dispute can be adjudicated in summary manner, and in the event of negative finding on the issue, the prescribed authority will have no jurisdiction. Reliance has also been placed on decision of the apex court in the case of Kalyan Singh Chauhan v. C.P. Joshi: (2011) 11 SCC 786 (paras 12 to 19) so as to contend that when a special tribunal is created by a statute for redressal of particular kind of disputes it has to act strictly within the four corners of its authority as prescribed by the statute.
Having noticed the submissions of the learned counsel for the petitioners, the points raised by him could be summarized as follows: (a) the reference application was not filed by one-fourth of the members of the society as determined by the assistant registrar vide order dated 11.08.2014 and therefore the prescribed authority had no jurisdiction to enter on the merits of the election by having its own determination of the electoral college; (b) the prescribed authority grossly misinterpreted the order of this court dated 12.01.2012 to conclude that the electoral college as it stood in the year 2000, which returned the last committee, was to be treated final; and (c) the prescribed authority did not properly consider the issue regarding induction of new members after valid constitution of the committee in the year 2000.
Sri Arun Kumar Singh, who has appeared on behalf of contesting respondents 4 and 5, submitted that under the provisions of the Act, 1860 no finality is attached to the adjudication, if any, by the Registrar on membership of a society. Even the newly inserted section 4-B of the Act, 1860 does not attach finality to the determination made by the Registrar in respect of membership therefore such determination is open to challenge before appropriate forum or court. Section 25 of the Act, 1860, as inserted in the State of U.P., creates a forum for settlement of disputes pertaining to election of office bearers of a society as also in respect of their continuance, in a summary manner. To effectively settle the dispute, clause (c) of the proviso to sub-section (1) of section 25 of the Act, 1860 empowers the Prescribed Authority to assess whether the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by the improper reception of any vote which is void, which implies that the Prescribed Authority has power to decide an issue as regards membership of the society and therefore whether a reference is with the strength of one-fourth of the members or not becomes a jurisdictional fact which has to be necessarily determined by the Prescribed Authority before adjudicating the dispute. While determining the existence of jurisdictional fact the Prescribed Authority can determine the general body and come to its own conclusion based on the material placed before it irrespective of any other determination made by the Registrar while holding election under section 25 (2) of the Act, 1860, though such determination is subject to decision of a civil court of competent jurisdiction.
The learned counsel for the contesting respondents further submitted that the Prescribed Authority had correctly interpreted the order passed by this Court dated 12.01.2012 as also the order passed by the Assistant Registrar dated 12.10.2012 in respect of finalizing the voter-list on the basis of the voter-list of the year 2000 and rightly held the reference application maintainable as being filed by one-fourth of the members of that voter-list. Hence, the order passed by the Prescribed Authority cannot be faulted on that ground. He further submitted that once the Assistant Registrar had held, vide order dated 12.10.2012, that the election under Section 25(2) of the Act, 1860, shall be held with the voter-list finalized by the Joint Director, the subsequent determination of the electoral college, vide order dated 11.08.2014, at variance with the earlier order dated 12.10.2012 was non-est and void as that amounted to review of the earlier order which was not legally permissible. The Prescribed Authority thus rightly entertained the reference upon finding that it had the support of 1/4th of the members of the general body finalized by the Joint Director, which had to be adopted and accepted as per the order of the Assistant Registrar dated 12.10.2012.
In support of his submissions the learned counsel for the respondents 4 and 5 placed reliance on decisions of this court in Sita Ram Rai & others v. Additional Registrar, Firms Societies and Chits, Gorakhpur: 2003 (5) AWC 4159 (para 18); Vindhya Vasini v. Prescribed Authority and others, 2002 (2) AWC 1623 (para 3); Shiksha Samiti Tilaura, Gorakhpur v. State of UP, 2005 (1) AWC 194 (para 9); and Committee of Management, Vijay Vidyalaya Samiti and another v. State of UP and others, 2011 (3) AWC 2255 (paras 10 and 11). In Sita Ram Rai's case (supra) it has been observed that election disputes, if any, including validity of members entitled to vote can be decided by the Prescribed Authority under Section 25 (1) of the Act, 1860. In Vindhya Vasini's case (supra), it was held that the decision relating to number of members of general body entitled to participate in election is incidental for deciding the doubt about validity of election under sub section (1) of section 25 of the Act, 1860 and therefore can be decided by the Prescribed Authority. In Shiksha Samiti Tilaura's case (supra), it has been held that whether the reference has been signed by the requisite number of valid members of the general body or not is a pure question of fact and it is for the prescribed authority to decide as to whether the reference made under Section 25 (1) of the Act has been duly signed by the members of the general body or not. In Vijay Vidyalaya Samiti's case (supra), it has been held that when a reference application has been presented under authority of a resolution of one-fourth of the members, merely because the reference application is presented by fewer members it cannot be rejected as not maintainable.
I have given thoughtful consideration to the rival submissions and have perused the record.
The main issue which requires adjudication in the present petition is whether the reference application of the respondents 4 and 5, with the signature of 165 members, out of whom 8 were found dead, was maintainable keeping in mind that the election under challenge was held with a general body comprising of 686 members, as determined by the Assistant Registrar in exercise of power under section 25 (2) of the Act, 1860. Incidental to the above issue are two issues: (a) whether the prescribed authority while considering the question of maintainability of the reference application could have sat over /discarded the determination of general body/ electoral college made by the Assistant Registrar in exercise of his power under section 25 (2) of the Act, 1860; and (b) If so, whether the decision of the prescribed authority in respect of the composition of the general body is legally sustainable.
The issue which calls for adjudication first is whether the prescribed authority while considering the question of maintainability of the reference application could have sat over /discarded the determination of general body/ electoral college made by the Assistant Registrar in exercise of his power under section 25 (2) of the Act, 1860.
Before proceeding to address the aforesaid issue, it would be apposite to notice the provisions of section 25 of the Act, 1860, as also other relevant provisions of the Act, 1860, as applicable in the State of Uttar Pradesh, so as to find out whether the statute confers finality to an order of the Registrar in respect of determination of membership in a society and whether for the purpose of conferring jurisdiction upon himself to decide the reference on merits, the prescribed authority has the power to determine question of membership in exercise of power under section 25 (1) of the Act, 1860.
Section 25 of the Act, 1860, as applicable in State of U.P. is extracted herein below:-
"25. Disputes regarding election of office bearers.--(1) The prescribed authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit:
Provided that the election of an office bearer shall be set aside where the prescribed authority is satisfied:
(a) that any corrupt practice has been committed by such office bearers; or
(b) that the nomination of any candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception of any vote which is void or by any non-compliance with the provisions of any rules of the society.
Explanation I.--A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person:
(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election;
(ii) with a view to inducing any elector to view or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand, as or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;
(iii) abets (within the meaning of the Indian Penal Code) the doing of any of the acts specified in Clauses (i) and (ii)
(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;
(v) canvasses on grounds of caste, community, sect or religion;
(vi) commits such other practice as the State Government may prescribe to be a corrupt practice.
Explanation II.--A "promise of individual advantage or profit to a person" includes a promise for the benefit of the person himself, or of any one in whom he is interested.
Explanation III.--The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.
(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 a 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 authorised 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.
(3) Where a meeting is called by the Registrar under Sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office bearer of the society.
Explanation. -- For the purposes of this section, the expression "prescribed authority" means an officer or Court authorised in this behalf by the State Government by notification published in the official Gazette. "
A perusal of sub-section (1) of section 25 of the Act, 1860 would reveal that the Prescribed Authority derives its power to hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of society: (a) on a reference made to it by the Registrar or; (b) on a reference made to it by at least one-fourth of the members of such society registered in Uttar Pradesh.
Section 15 of the Act, 1850 defines member. Sub-section (1) of section 15 of the Act provides that 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. It also defines disqualified members by providing that 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. Sub-section (2) of section 15 of the Act, 1860 provides that every society shall maintain a register of members giving such particulars, as may be prescribed. However, section 15 does not confer power on the Registrar or any other authority to decide any issue in respect of membership. In Shiv Kumar Singh v. State of U.P.: 2004 (5) ESC (All) 493 (para 15), this court has held that the Assistant Registrar is not authorized to decide any dispute with regards to membership of the general body under Section 15 of the Act, 1860.
Section 4-B has been inserted in Act, 1860 by U.P. Act No. 23 of 2013 with effect from 09.10.2013. Section 4-B of the Act, 1860 provides that 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 is enjoined upon to 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. Sub-section (2) of section 4-B provides that if there is any change in the list of members of the general body of the society 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.
Section 4-B though does not specifically empower a Registrar to adjudicate membership dispute but membership issue can be incidentally decided while examining correctness of the list of members submitted. However, even this section does not attach finality to the order of the Registrar. Therefore it is open to an aggrieved party to invoke civil court's jurisdiction in respect of membership claim.
Section 3-A of the Act, 1860 deals with renewal of registration, whereas section 4 of the Act deals with filing of annual list of office bearers of the society. The said provisions though do not specifically confer power on the Registrar to deal with membership issues but by judicial pronouncements it has been settled that membership issue can be incidentally looked into and decided by the Registrar in exercise of his powers under the said provisions. However, any such adjudication made by the Registrar has not been conferred finality either by the statute or by judicial pronouncement.
Sub-section (2) of section 25 of the Act, 1860 provides that 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-bearer of a society has not been held within the time specified in the rules of that society, he may call a 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. Sub-section (3) of section 25 of the Act, 1860 provides that where a meeting is called by the Registrar under sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office bearer of the society.
It is well settled that the Registrar for the purpose of calling meeting of the general body of a Society for electing its office-bearers, under sub-section (2) of section 25 of the Act, 1860, is incidentally empowered to decide membership disputes for the purpose of determining the electoral college to hold the meeting. However, again, neither the Act, 1860 nor judicial pronouncements attach finality to such determination.
Section 25 of the Act, 1860, as inserted in the State of U.P., creates a forum for settlement of disputes pertaining to election of office bearers of a society as also in respect of their continuance, in a summary manner. To effectively settle the dispute, clause (c) of the proviso to sub-section (1) of section 25 of the Act, 1860, empowers the Prescribed Authority to assess whether the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by the improper reception of any vote which is void, which implies that the Prescribed Authority has power to decide issue as regards membership of the society. Whether a reference is with the strength of one-fourth of the members or not becomes a jurisdictional fact, which has to be necessarily determined by the Prescribed Authority. While determining the existence of jurisdictional fact, the Prescribed Authority can arrive at its own conclusion in respect of membership of the society. Such conclusion can be arrived at on the basis of the evidence/ material placed before it keeping in mind the relevant parameters including the bye-laws/rules of the society and the documents of the nature mentioned in section 4 B of the Act, 1860. As no finality has been provided to the incidental determination of membership by the Registrar in exercise of his power to hold an election meeting under Section 25 (2) of the Act, notwithstanding any such determination of the issue made by the Registrar, the Prescribed Authority, while exercising its power under Section 25 (1) of the Act, can determine the electoral college/general body of the society for the purpose of ascertaining whether the reference application is maintainable.
The above view finds support from the law laid down by the apex court in respect of power of a tribunal of limited jurisdiction to determine jurisdictional fact based upon which exercise of its adjudicatory power depends. At this stage, it would be apposite to notice the decision of the apex court in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu, 1991 Supp (2) SCC 228, where, in para 23, it was held as under:
"23. The jurisdiction of a tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact. Such a fact is collateral to the actual matter which the tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the tribunal has to consider. At the inception of an enquiry by a tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have had. Except such tribunals of limited jurisdiction, when the statute not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly. If it has jurisdiction to do right, it has jurisdiction to do wrong. It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final.
(Emphasis Supplied)"
Similar view has been expressed by the apex court in Carona Ltd. v. Parvathy Swaminathan & Sons, (2007) 8 SCC 559. The relevant paragraphs of the judgment are extracted below:
"26. The learned counsel for the appellant company submitted that the fact as to "paid-up share capital" of rupees one crore or more of a company is a "jurisdictional fact" and in absence of such fact, the court has no jurisdiction to proceed on the basis that the Rent Act is not applicable. The learned counsel is right. The fact as to "paid-up share capital" of a company can be said to be a "preliminary" or "jurisdictional fact" and said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable. The question, however, is whether in the present case, the learned counsel for the appellant tenant is right in submitting that the "jurisdictional fact" did not exist and the Rent Act was, therefore, applicable.
27. Stated simply, the fact or facts upon which the jurisdiction of a court, a tribunal or an authority depends can be said to be a "jurisdictional fact". If the jurisdictional fact exists, a court, tribunal or authority has jurisdiction to decide other issues. If such fact does not exist, a court, tribunal or authority cannot act. It is also well settled that a court or a tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not posses.
28. In Halsbury's Laws of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, it has been stated:
"Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive."
The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court or tribunal.
Jurisdictional fact and adjudicatory fact
29. But there is distinction between "jurisdictional fact" and "adjudicatory fact" which cannot be ignored. An "adjudicatory fact" is a "fact in issue" and can be determined by a court, tribunal or authority on "merits", on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish "jurisdictional fact" and "fact in issue" or "adjudicatory fact". Nonetheless the difference between the two cannot be overlooked.
30. In Halsbury's Laws of England (4th Edn.), Vol. 1, Para 55, p. 61; Reissue, Vol. 1(1), Para 68, pp. 114-15, it is stated:
"There is often great difficulty in determining whether a matter is collateral to the merits or goes to the merits. The distinction may still be important; for an erroneous decision on the merits of the case will be unimpeachable unless an error of law is apparent on the face of the record of the determination or unless a right of appeal lies to a court in respect of the matter alleged to have been erroneously determined. An error of law or fact on an issue collateral to the merits may be impugned on an application for an order of certiorari to quash the decision or in any other appropriate form of proceedings, including indirect or collateral proceedings. Affidavit evidence is admissible on a disputed issue of jurisdictional fact, although the superior courts are reluctant to make an independent determination of an issue of fact on which there was a conflict of evidence before the inferior tribunal or which has been found by an inspector after a local inquiry."
(Emphasis Supplied) From the law noticed above it becomes clear that at the inception of an enquiry by a tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the tribunal has to consider as a collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have had. From the decisions noticed above, it is also clear that an error of law or fact on an issue collateral to the merits may be impugned on an application for a writ of certiorari to quash the decision.
In view of the reasons recorded above, it is held that the Prescribed Authority while dealing with a reference application has to first consider, as a collateral fact, whether the petition is by one-fourth of the members of the society or not. While dealing with such issue, it has jurisdiction to come to its own conclusion as regards the strength of the general body. But finding on such jurisdictional fact is not only subject to a civil suit but is also amenable to scrutiny in writ jurisdiction inasmuch as a tribunal of limited jurisdiction by a wrong decision on a collateral fact affecting its jurisdiction cannot confer on to itself jurisdiction to enter the merits of the dispute.
Now, what needs to be considered is whether the Prescribed Authority was justified in holding that the general body comprised of 536 alive members and not 686 alive members as determined by the Assistant Registrar while holding election under section 25 (2) of the Act, 1860.
Before proceeding to consider the aforesaid issue, it would be apposite to first consider whether by order of this court dated 12.01.2012 in Writ C No. 25704 of 2011 the voter list which returned the committee of the college in the year 2000 was declared final or it was provisional, subject to induction/expulsion of members by the committee which was in control as per its term.
A perusal of the order dated 12.01.2012, which is there on record as annexure 3 to the petition, would go to show that the election which was under challenge before this Court in those petitions was with a 389 members general body whereas the previous election of the year 2000 was held with much larger general body. The court had found, at page 57 of the paper book, that there had been no exercise in deciding the membership of 389 members and that the membership list of the year 2000 was not made basis for the determination of membership in accordance with the provisions of the Scheme of Administration. In that factual matrix, the Court found it appropriate to set aside the order passed by the District Inspector of Schools according approval to the election held on the basis of the list of 389 members and require the Joint Director to finalize the electoral roll on the basis of the membership list of the year 2000, having regard to the Scheme of Administration and the order of Commissioner dated 31.12.2003.
A careful perusal of the order dated 12.01.2012 would reveal that this Court had not by itself declared the electoral list of the year 2000 as the final voter list but had only required the Joint Director to make the said list as a base for determination of the electoral college.
It is well know that when an electoral roll is determined, first a provisional voter-list is published, upon which objections are invited and, thereafter, a final list is declared.
It is not in dispute that in the year 2000, a Committee had been elected and it had a term of three years. During its term, the Committee could and might have enrolled new members in accordance with the Scheme of Administration and bye-laws of the Society and likewise there could have been expulsion of members, if permissible in law. Under the circumstances, the direction of this Court dated 12.01.2012 to finalize voter list on the basis of the year 2000 voter list cannot be taken as determination of the electoral college but as the basis for determination of the electoral college.
The other question that would now be appropriate to address before proceeding further would be whether the determination of the electoral college by the Assistant Registrar on 11.08.2014 would be void as it amounted to review of his earlier order dated 12.10.2012.
A perusal of the order dated 12.10.2012, which has been brought on record as annexure no. 4 to the petition would reveal that the Assistant Registrar had held that the Committee of Management of the Society had become time barred and therefore the election of the office-bearers was required to be held under Section 25 (2) of the Act, 1860. It was further observed that since the High Court, vide its order dated 12.01.2012, had directed the Joint Director to determine the electoral roll, it would be appropriate to hold election with the same voter-list because there is a common general body for the society and the college.
On the date when the order dated 12.10.2012 was passed, there was no determination of the voter-list by the Joint Director. It appears that the Joint Director made determination of the voter list by his order dated 19.03.2013. Under the circumstances, while passing the order dated 12.10.2012 the Assistant Registrar had no occasion to test whether the voter list was properly determined or not and in accordance with the order of the High Court. Further, since the Joint Director finalized voter list on 19.03.2013, much after the order dated 12.10.2012, it cannot be said that by order dated 12.10.2012 the Assistant Registrar had finalized the voter list by adoption of the voter-list determined by the Joint Director. Therefore, if the Assistant Registrar had, subsequently, determined the voter-list in exercise of his power under sub-section (2) of section 25 of the Act, 1860, it cannot be said that he had reviewed his earlier order. This Court is, therefore, of the view that the Assistant Registrar while determining the electoral college on 11.08.2014, before holding the election, under Section 25(2) of the Act, 1860, had not reviewed his earlier order dated 12.10.2012 and, hence, the determination of the electoral college made on 11.08.2014 cannot be said to be void on that count.
Now, the question that arises for consideration is whether the electoral college determined by the Prescribed Authority for the purpose of conferring jurisdiction on to himself and for determining the validity of election is legally sustainable or not.
A perusal of the order of the Prescribed Authority would reflect that he proceeded on assumption that there could be no addition to the list of members who had participated in the year 2000 election because the High Court had directed so, which assumption is not correct as already discussed above, inasmuch as, the year 2000 list was only to be taken as a base for determination of the electoral college.
Admittedly, on the basis of the year 2000 election a committee came to be in control of the institution. According to the petitioners 110 members were inducted between the year 2000 and 2003, which fact has not been properly considered even though the Assistant Registrar while determining the electoral college under section 25 (2) of the Act, 1860 had discussed it in his order. The grievance of the petitioner is that those members have been very cursorily discarded by observing that some of them were amongst those 389 who were discarded by this court and that some of the membership receipts were in the name of those persons who were not there in the list. It has been submitted that there is no detailed scrutiny in respect of membership as was required by law, more so, when it was a jurisdictional fact.
I have carefully perused the findings of the Prescribed Authority on issues 2 and 3 which relate to validity of the electoral college. The findings on the said issues are vitiated for two reasons. Firstly, the Prescribed Authority wrongly assumed that the year 2000 list was final and no addition was permissible; and secondly, the claim of induction of 110 members, while the last elected committee was in lawful control, has not been properly considered and the finding in that regard is perfunctory, which requires reconsideration by meticulously dealing with evidence in respect of induction of each of the new members keeping in mind the provisions of the Scheme of Administration and the bye-laws/rules of the Society. Accordingly, the decision on issues 2 and 3 is liable to be set aside and is accordingly set aside.
As the merits of the reference including its maintainability is dependent on issues 2 and 3, the order of the Prescribed Authority dated 18.12.2017 is liable to be set aside and is, accordingly set aside. The Prescribed Authority, shall restore the proceeding and decide the matter afresh in the light of the observations made herein above after giving opportunity of hearing to the parties and shall endeavour to take a decision expeditiously, preferably, within a period of three months from the date of production of certified copy of this order before him.
The petition is allowed to the extent indicated above.
Order Date :-16.3.2018 Sunil Kr Tiwari