Allahabad High Court
C/M Jairajpur Muslim Educational ... vs Assistant Registrar Firms, Societies ... on 16 July, 2024
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2024:AHC:113103 RESERVED ON 25.01.2024 DELIVERED ON 16.07.2024 Court No. - 1 Case :- WRIT - C No. - 30624 of 2023 Petitioner :- C/M Jairajpur Muslim Educational Society And Another Respondent :- Assistant Registrar Firms, Societies And Chits And Another Counsel for Petitioner :- Adarsh Singh,Indra Raj Singh,Vineet Kumar Singh AND Case :- WRIT - C No. - 23066 of 2023 Petitioner :- Muzaffar Khan And 9 Others Respondent :- State Of U.P. And 15 Others Counsel for Petitioner :- Sr. Advocate,Vineet Kumar Singh Counsel for Respondent :- Adarsh Singh,Indra Raj Singh Hon'ble Salil Kumar Rai,J.
The above mentioned two writ petitions were connected by order of this Court, therefore, were heard together and are being decided by a common judgment.
The petitioners in Writ - C No. 30624 of 2023 shall be referred as 'petitioners' in the present judgment and the petitioners in Writ - C No. 23066 of 2023 shall be referred as 'respondents' in the present judgment.
The facts of the case are that Jairajpur Muslim Educational Society, Jairajpur, Azamgarh, U.P. (hereinafter referred to as, 'Society') is a Society registered under the Societies Registration Act, 1860 (hereinafter referred to as, 'Act, 1860') and the registration of the Society stands renewed for a period of five years w.e.f. 12.10.2020. The Society manages an Institution in the name of Nishwa Inter College, Jairajpur, Azamgarh which is a recognized Institution under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as, 'Act, 1921') and receives grant-in-aid upto Junior High School.
The admitted elections of the governing body and the office-bearers of the Society were held on 23.10.2019 in which one Abdul Haqim was elected as Secretary/Manager and the petitioner no. 2 was elected as Joint Secretary. Under the bye-laws of the Society, the term of the governing body and the elected office-bearers of the Society is three years. Under the bye-laws of the Society, the Joint Secretary, in absence of the Secretary, is empowered to summon the meetings of the Society. Abdul Haqim died on 1.11.2020. The petitioner no. 2, being the Joint Secretary of the Society, summoned a meeting of the governing body on 23.9.2022 to fill up the vacancy on the post of Secretary caused due to death of Abdul Haqim and in the said meeting, the petitioner no. 2 was elected as Secretary for the remaining term. On 10.10.2022, the petitioner no. 2 submitted the requisite documents before the Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh for registration. The list of the elected office-bearers and also list of the members of the general body for the year 2022-23 were also filed by the petitioner no. 2 before the Assistant Registrar for registration under Section 4 of the Act, 1860.
The petitioner no. 2 claims that on 20.10.2022, fresh elections to constitute the governing body of the Society and to elect its office-bearers were held in which the petitioner no. 2 was elected as Secretary and one Sri Wasiudin was elected as President. It is also claimed by the petitioner no. 2 that the documents relating to the elections held on 20.10.2022 along with the list of newly elected office-bearers and a list of members of the general body for the year 2022-23 were submitted before the Assistant Registrar for registration under Section 4 of the Act, 1860. The list of members of the general body submitted along with proceedings of the election dated 20.10.2022 was different from the list of the members of the general body submitted on 10.10.2022. The list of the members of the general body submitted on 10.10.2022 has been annexed as Annexure No. 6 to the writ petition and contains the name of the respondents while the list of the members of the general body of the Society for the period 2022-23 submitted along with the proceedings of the elections held on 20.10.2022 excludes the respondents and has been annexed as Annexure No. 7 to the writ petition.
The Assistant Registrar, Firms, Societies and Chits, i.e., respondent no. 1 vide his order dated 28.6.2023 has recognized the elections dated 23.9.2022 wherein petitioner no. 2 was elected as Secretary but has rejected the elections claimed by the petitioners to have been held on 20.10.2022. By the same order dated 28.6.2023, the Assistant Registrar has held that the term of the governing body of the Society had already expired, therefore, elections were to be held under Section 25(2) of the Act, 1860 and by the same order, the Assistant Registrar has notified a tentative list of 37 members of the Society entitled to vote in the proposed elections. The tentative list of voters notified by the Assistant Registrar is the same list which was submitted by the petitioner along with the proceedings of the alleged elections held on 20.10.2022 and not the list which was submitted by the petitioners on 10.10.2022. The list notified by the Assistant Registrar does not contain the name of the respondents.
The order dated 28.6.2023 so far as it rejects the election dated 20.10.2022 claimed by the petitioner has been challenged by the petitioner in Writ - C No. 30624 of 2023. In Writ - C No. 23066 of 2023 the respondents challenge the order dated 28.6.2023 so far as it notifies the tentative list of 37 members / voters excluding the respondents.
It was argued by the counsel for the petitioners that the issue before the Assistant Registrar was regarding the validity of the elections dated 20.10.2022, therefore, the matter had to be referred to the Prescribed Authority under Section 25(1) of the Act, 1860 and could not have been decided by the Assistant Registrar in proceedings registered under Section 4 of the Act, 1860. It was argued that for the aforesaid reason, the order dated 28.6.2023 passed by the Assistant Registrar so far as it rejects the elections dated 20.10.2022 is without jurisdiction. It was further argued that the claim of the petitioners regarding elections dated 20.10.2022 have been rejected on the ground that no document relating to the aforesaid elections had been submitted by the petitioner. It was argued that opportunity to file the necessary documents relating to the elections set up by the petitioner was granted after the hearing was concluded by the Assistant Registrar on 24.4.2023. It was argued that opportunity to file the necessary documents should have been given to the petitioners before concluding the hearing and not after the hearing was concluded, therefore, the procedure adopted by the Assistant Registrar was contrary to law. It was argued that for the aforesaid reasons, the order dated 28.6.2023 passed by the Assistant Registrar is liable to be quashed. In support of his contentions, the counsel for the petitioners has relied on the judgments reported in Vijai Narain Singh vs. Registrar Firms Societies and Chits Registration, U.P. Lucknow and Ors. 1981 UPLBEC 308; Abhay Grasth Gramin Jan Sangathan Kusmikhalan and Anr. vs. Assistant Registrar Firms Societies and Chits Varanasi Region, Varanasi and Anr. 1990 UPLBEC (1) 480; Gram Shiksha Sudhar Samiti, Junior High School Sikandara District Kanpur Dehat and Anr. vs. Registrar Firms Societies and Chits, U.P. Lucknow and Ors. 2010 UPLBEC (3) 2522; Ramadhar Shastri and Anr. Vs. Deputy Director of Education, IV Region, Allahabad and Ors. 1987 UPLBEC 14; Committee of Management, Anjuman Kherul Almin Allahganj and Anr. Vs. State of U.P. and Ors. 2013 (0) Supreme (All) 2849 and Committee of Management, Madrasa Arbia Azizia Majaharool Uloom vs. State of U.P. and Ors. 2023 (1) UPLBEC 217.
Rebutting the arguments of the counsel for the petitioners, the counsel for the respondents has supported the order dated 28.6.2023 so far as it rejects the elections dated 20.10.2022 set up by the petitioners and proceeds to hold the elections under Section 25(2) of the Act, 1860. It has been argued that the elections dated 20.10.2022 set up by the petitioner have been rejected not because of any dispute raised on the validity of the elections but because the petitioner did not file the requisite documents to establish the proceedings of the alleged elections held on 20.10.2022. It was argued that the elections set up by the petitioner were not even prima facie established by the documents filed by him. It was argued that no jurisdictional error has been committed by the Assistant Registrar while rejecting the elections dated 20.10.2022 set up by the petitioners. In support of their contention, the counsel for the respondents has relied on the judgments of this Court reported in Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and Anr. vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. 1995 (2) UPLBEC 1242; Committee of Management, Naldeo Kuldeo Purva Madhyamik Vidyalaya Belaon, District Jaunpur and Anr. vs. Assistant Registrar, Firms, Societies and Chits, Azamgarh and Anr. 1997 (2) UPLBEC 1009 and Committee of Management, Sarvodaya Mandal, Baranpur, Koraon District Allahabad and Ors. vs. Assistant Registrar, Firms, Societies and Chits, Allahabad and Ors. 1997 (1) UPLBEC 258.
While challenging the order dated 28.6.2023 so far as it notifies the tentative list of 37 members of the general body of the Society, the counsel for the respondents have argued that the list notified by the Assistant Registrar is the same list of members which was submitted by the petitioners along with the proceedings of the alleged elections held on 20.10.2022. The proceedings of elections dated 20.10.2022 has been rejected by the Assistant Registrar vide his order dated 28.6.2023, therefore, the list of members submitted by the petitioners along with the said proceedings could not have been accepted by the Assistant Registrar. It was argued that the petitioners would not have any opportunity to file their objections to the tentative list notified by the Assistant Registrar as objections can only be filed against the persons who have been included in the said list and cannot be filed by a person who is not included in the tentative list of voters notified by the Assistant Registrar under Section 25(2) of the Act, 1860. It was argued that before holding the elections under Section 25(2), the Assistant Registrar is duty bound to pass final orders on the list submitted for registration under Section 4-B of the Act, 1860, therefore, a mandamus is to be issued to the Assistant Registrar to decide the claim of the petitioners under Section 4-B of the Act, 1860 and only thereupon, proceed to hold elections under Section 25(2) of the Act, 1860. It was argued that for the aforesaid reasons, the order dated 28.6.2023 so far as it notifies the tentative list of 37 members for elections to be held under Section 25(2) is contrary to law and is liable to be quashed. In support of his contention, the counsel for the petitioner relies on a Division Bench Judgment of this Court delivered in Harish Chandra Gupta vs. Registrar, Firms, Societies and Chits and Ors. 1990 AWC 1246.
I have considered the submissions of the counsel for the parties.
It is true that in proceedings under Section 4 of the Act, 1860, the Assistant Registrar cannot decide any dispute regarding the validity of the elections or continuance in office of an office-bearer of the Society and any such dispute can be decided only by the Prescribed Authority under Section 25(1) of the Act, 1860. If any such dispute arises during the proceedings under Section 4, the Assistant Registrar has no alternative but to refer it to the Prescribed Authority.
But the Registrar would lose the jurisdiction to proceed under Section 4 and would have to refer the matter to the Prescribed Authority under Section 25(1) only when a bona fide dispute regarding elections is raised. Under Section 4, the Registrar has the jurisdiction to consider whether there is any bona fide dispute regarding elections which requires reference under Section 25(1) or a frivolous dispute has been raised only to avoid or delay a decision under Section 4. It has been held by a Division Bench of this Court in C/M, Kisan Shiksha Sadan (supra) that under Section 4 of the Act, 1860, the Registrar is under an obligation to maintain a register of members of the managing body for his own administrative purpose and is also under an obligation to record the names of the elected members of the managing body and for that purpose, he can hold an inquiry to find out who are the elected members of the managing body of the society. The Registrar has to apply his mind to the facts of the case and take a decision before referring the matter to the Prescribed Authority and in taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances. The observations of the Division Bench of this Court in Paragraphs 2 and 3 of the judgment are reproduced below:-
"2. It is submitted by the learned Counsel for the appellants that the Registrar has no power or jurisdiction to decide the question relating to the membership of the second appellant. When he raised a dispute about the election of the Manager of the Shiksha Sadan, he had no other alternative but to refer the doubt or dispute relating to the election of the Manager of the Shiksha Sadan to the Prescribed Authority under Section 25 of the Societies Registration Act, 1860 (in short 'the Act'). On the other hand, it is submitted by the learned Counsel appearing for the respondents that the Registrar may or not refer a dispute or doubt relating to the election of the Manager of a Society to the Prescribed Authority for valid reasons and the Registrar is under no obligation to refer any dispute or doubt relating to the election, without applying his mind, to the Prescribed Authority. It is further submitted that the Registrar is under an administrative obligation under Section 4 of the Act to maintain a register of members of the managing body for his own administrative purpose. He is under an obligation to record the names of the elected members of the managing body and for that purpose he can held an enquiry so as to find out who are the elected members of the managing body of a Society. On the basis of such enquiry, if the Registrar comes to the conclusion that a person or persons are not even the members of the Society, he will be quite justified in not referring the doubt or dispute as to the election of members of the managing body of a Society.
3. Having regard to the provisions of the Act, we see force in the submission of the learned Counsel for the Respondents. Section 4 of the Act provides that a list of members of the managing body of a Society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a Society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the Society raise a doubt or dispute relating to the election of the members of managing body or Society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a Society to the Prescribed Authority, the Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances, as he has done in the present case. If an objection is raised about the membership of a person, in our view, it is the duty of the Registrar, for his own administrative purpose, to enquire into whether the person concerned is a member of the Society or not. If the Registrar comes to the conclusion that such a person is not a member of the Society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision. In the present case, the Registrar has applied his mind to the facts of the case to find out whether the second appellant herein or was not a member of the Shiksha Sadan. He found that he was not even a member of a Society. It is a pure question of facts. If any person feels aggrieved by such a decision, the proper course open to him is to approach the Civil Court and seek appropriate relief. The Registrar is bound by the decision of the Civil Court and his decision will be subject to the decree passed by the Civil Court."
(emphasis supplied) Similarly, in Committee of Management, Sarvodaya Mandal, Baranpur (supra), a Single Judge of this Court held that reference under Section 25 is to be made only when there is a genuine dispute about office-bearers of the Society and a frivolous dispute is not required to be referred under Section 25(1) of the Act, 1860.
By his order dated 28.6.2023, the Assistant Registrar has rejected the claim of the petitioner regarding the elections dated 20.10.2022 on the ground that the petitioner had not filed before the Assistant Registrar any document including notice of the agenda of the meeting relating to the proceedings of the election. In fact, the petitioner had not filed any document disclosing the details of any proceedings relating to the alleged elections dated 20.10.2022. The petitioner had only submitted the resolution of the meeting dated 20.10.2022 which did not disclose even the names of the members who had participated in the meeting. It is in the said circumstances that the Assistant Registrar rejected the claim of the petitioner regarding the election dated 20.10.2022. The elections of the petitioners have not been rejected on any claim made by the respondents or on any dispute raised by them on the validity of the elections but on the failure of the petitioners to supply the requisite documents relating to the elections and to prima facie establish that any meeting dated 20.10.2022 was held electing the petitioner no. 2 as Secretary. In his order dated 28.6.2023, the Assistant Registrar has not decided the validity of the elections claimed by the petitioner but has held that the petitioner had not been able to establish that the elections claimed by him had been held. In proceedings under Section 4, the Assistant Registrar has the power / jurisdiction to reject the list of elected office-bearers or members of the governing body of the Society submitted for registration, if the persons claiming themselves to be the elected office-bearers do not supply the necessary documents to enable the Assistant Registrar to verify the correctness of the lists submitted for registration which would also require an inquiry into the question as to whether the elections were actually held. The documents showing that the requisite formalities for holding the said elections had been completed are to be considered by the Assistant Registrar. If the Assistant Registrar in proceedings under Section 4 comes to the conclusion that the documents submitted by the party do not establish that the elections were held, then he is not required to refer the matter to the Prescribed Authority under Section 25(1) of the Act, 1860 and would not be deprived of his jurisdiction to refuse to register the list of elected office bearers as submitted before him. In such a situation, the decision of the Assistant Registrar would not be a decision on the validity of the election and his order would not be without jurisdiction. In view of the aforesaid, the contention of the counsel for the petitioners that the order dated 28.6.2023 passed by the Assistant Registrar is without jurisdiction stands rejected.
It was further argued by the counsel for the petitioners that the Assistant Registrar concluded the hearing on 24.4.2023 and the parties were asked to submit their written arguments and original documents within one week after the hearing was concluded. It was argued that the aforesaid procedure adopted by the Assistant Registrar was contrary to law and the requisite documents to establish the claim of the parties had to be sought before hearing was concluded. In support of his contention, the counsel for the petitioners has relied on a Division Bench judgment of this Court reported in Ramadhar Shastri (supra).
A reading of the impugned order dated 28.6.2023 shows that the procedure challenged by the petitioner was adopted by the Assistant Registrar with the consent of the parties. There is no averment in the writ petition challenging the recital in the order dated 28.6.2023 that it was with the consent of the parties that the hearing was concluded and the parties were permitted to file their written arguments as well as the original documents within one week after the hearing was concluded. It is not the case of petitioner no. 2 that he had previously submitted the necessary documents but the Assistant Registrar had refused to take the same on record. Even, if the argument of the counsel for the petitioners that the Assistant Registrar could not have asked the parties to submit the requisite documents after the hearing was concluded is accepted, the said fact would not vitiate the order dated 28.6.2023 as the parties had not filed any document after the hearing was concluded by the Assistant Registrar on 24.4.2023. In Ramadhar Shastri (supra), the parties had filed their evidence after the hearing was concluded and there was a chance that the adjudicating authority had either relied or rejected any of the evidence filed by the parties without giving either of the parties the opportunity to explain or rebut the evidence filed by the other party. In the present case, no reliance has been placed by the Assistant Registrar on any document filed by the opposite parties who had disputed the claim of the petitioner. In view of the aforesaid, the judgment in Ramadhar Shastri (supra) is not applicable in the present case.
For all the aforesaid reasons, I do not find any illegality in the order dated 28.6.2023 so far as it rejects the claim of the petitioners based on the elections dated 20.10.2022 and for the said reason, Writ - C No. 30624 of 2023 is liable to be dismissed.
However, the plea of the respondents that the order dated 28.6.2023 so far as it declares a tentative list of 37 members of the general body of the Society which list excludes the petitioner is contrary to law, has force.
It is apparent from the records annexed by the petitioner himself in Writ - C No. 30624 of 2023, especially annexure no. 6 to the writ petition, that after the elections dated 23.9.2022 electing the petitioner as the Secretary, the list of elected office bearers and members of the general body of the Society for the year 2022-23 was submitted by the petitioner before the Assistant Registrar on 10.10.2022. The list of members of the general body contained the name of the respondents. Subsequently, on 31.10.2022 a fresh list of members of the general body for the year 2022-23 along with the list of elected office bearers of the Society was submitted by the petitioners along with the proceedings of elections dated 20.10.2022. The list of the members of the general body of the Society submitted on 31.10.2022 did not include the name of the petitioners. The Assistant Registrar in his order dated 28.6.2023 has notified the second list as the tentative list of the members of the general body of the Society and the electoral roll for the elections proposed to be held under Section 25(2).
It is apparent that two different lists of members of the general body of the Society were submitted by the petitioner before the Assistant Registrar. Both the lists purported to be of the year 2022-23. The first list was submitted on 10.10.2022 as a consequence of the elections held on 23.9.2022. The proceedings dated 23.9.2022 have been accepted by the Registrar. The second list was submitted on 31.10.2022 as a consequence of the elections allegedly held on 20.10.2022. The claim of the petitioners regarding the elections held on 20.10.2022 has been rejected by the Assistant Registrar. However, no reasons have been given by the Assistant Registrar for accepting the second list and not the first list submitted by the petitioner no. 2. A reading of the order dated 28.6.2023 does not show that there is any consideration by the Registrar regarding the validity of the different lists of members of the general body submitted by the petitioner no. 2 himself. In his counter affidavit filed in Writ - C No. 23066 of 2023, the petitioner no. 2 has stated that the respondents were defaulters and had not paid their membership fees. A reading of the order dated 28.6.2023 does not show that any such claim was made by the petitioner no. 2 before the Assistant Registrar. However, before deciding on the validity of any list, the Assistant Registrar was bound to have considered the different records of the Society as enumerated in Section 4-B(1) of the Act, 1860 but as noted earlier, the order dated 28.6.2023 does not show that the Assistant Registrar examined the different lists of members of the general body submitted by the petitioner no. 2.
Apart from the aforesaid, when the Registrar proposes to hold elections under Section 25(2) of the Act, 1860 his role as Election Officer merges with his power under Section 4-B of the Act, 1860. Where elections are to be held under Section 25(2) of the Act, 1860 and the list of members of the general body of the Society are pending for registration under Section 4-B of the Act, 1860, the Registrar has to first decide and pass orders under Section 4-B before proceeding with the elections to be held under Section 25(2) of the Act, 1860. Any other procedure may result in inconsistent orders being passed by the Registrar, one as Election Officer holding the elections under Section 25(2) of the Act, 1860 and the other as the competent authority empowered to register the list of members under Section 4-B of the Act, 1860. The probable inconsistencies in orders of the Registrar would make the Act, 1860 unworkable as the electoral roll declared by the Assistant Registrar as Election Officer under Section 25(2) could be different from the list subsequently registered under Section 4-B of the Act, 1860. In view of the aforesaid, the order dated 28.6.2023 so far as it notifies a tentative list of 37 members excluding the petitioner from the same and without passing any orders under Section 4-B of the Act, 1860 is contrary to law and is liable to be quashed and a direction is to be issued to the Assistant Registrar to register the list of members of the general body under Section 4-B of the Act, 1860 after due examination of the different lists submitted before him by the petitioner no. 2 before holding the elections under Section 25(2).
The order dated 28.6.2023 passed by the Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh so far as it notifies a tentative list of 37 members excluding the petitioners is, hereby, quashed.
The Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh, i.e., respondent no. 1 is directed to pass appropriate orders in accordance with law under Section 4-B of the Act, 1860 regarding the different lists of members of the general body submitted by petitioner no. 2 on 10.10.2022 and 31.10.2022 within a period of one month from today and before holding the elections under Section 25(2). The meeting to hold elections under Section 25(2), shall be called by the Assistant Registrar in accordance with the bye-laws of the Society immediately after appropriate orders are passed under Section 4-B of the Act, 1860.
It is clarified that the order dated 28.6.2023 passed by the Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh so far as it rejects the claim of petitioner no. 2 based on the elections dated 20.10.2022 is not being interfered with through the present order.
With the aforesaid observations and directions, Writ - C No. 30624 of 2023 is dismissed and Writ - C No. 23066 of 2023 is allowed.
Order Date :- 16.7.2024 Satyam