Allahabad High Court
Committee Of Management, Hari Shyam ... vs State Of U.P. Through Secretary, ... on 24 May, 2007
Author: Arun Tandon
Bench: Arun Tandon
JUDGMENT Arun Tandon, J.
1. Heard Sri Sri Ashok Khare, Senior Advocate, Assisted by Sri Rajesh Rai and Sri S.D. Shukla, Advocates, on behalf of petitioners, Sri Sashi Nandan, Senior Advocate assisted by Sri R.K. Ojha, Advocate on behalf of respondent No. 6 and learned Standing Counsel on behalf of respondent Nos. 1 to 5.
2. Parties have exchanged their affidavits and agree that the present writ petition may be disposed of finally at the admission stage itself.
3. Dispute arose between two societies, namely, Hari Shyam Khadi Gram Udyog Sowa Sabha Malak Harhar, Allahabad (registered in the year 1968) and Hari Shyam Khadi Gram Udyog Sewa Samiti, Malak Harhar, Allahabad (registered in the year 1978), qua the right to manage the institution established in the name and style of "Uttar Pradeshiya Balika Vidyalaya Junior High School, Malak Harhar, Allahabad. The controversy was subject matter of Civil Misc. Writ Petition No. 5368 of 1981 decided on 13th January, 1988. The Court required the Basic Shiksha Adhikari to examine the matter in light of the direction contained in the order of the Court.
4. The Basic Shiksha Adhikari vide his 16th February, 1989 held that there are two rival societies duly registered under the Societies Registration Act, 1860, claiming a right to manage the institution and therefore, it would be appropriate that the dispute be decided by the Registrar, Firms Societies and Chits. On 28th August, 1989. The Assistant Registrar, Firms, Societies and Chits inturn held that both the societies are duly registered under the Societies Registration Act, 1860 and therefore, their rights be examined by appropriate court. The Basic Shiksha Adhikari on 19th September, 1989 recognised the society with Ravindra Nath Mishra as Secretary/Manager, as entitled to manage the institution. This order was challenged by Ashthbhuja Prasad Dubey in his capacity as Manager of the other society by means of Civil Misc. Writ Petition No. 20957 of 1990. The writ petition was allowed under judgment and order dated 21st September, 1993 with a direction upon the Basic Shiksha Adhikari to decide as to which of the society is entitled to manage the institution. The Basic Shiksha Adhikari on 10th January, 1994 maintained his earlier order dated 19th September, 1989. This order of the Basic Shiksha Adhikari was challenged by Ashtabhuja Prasad Dubey by means of Civil Misc. Writ Petition No. 8577 of 1994. The writ petition was finally allowed vide judgment and order dated 22nd April, 2004 and the order of the Basic Shiksha Adhikari dated 10th January, 1994 was quashed. The Basic Shiksha Adhikari was directed to decide the issue afresh in light of the observations made in the writ petition. This Court further recorded that under the provisions of the Societies Registration Act, 1860, renewal of the society can be obtained in changed name and that such registration can be renewed even if the term of the earlier registration of the society has expired, with specific reference to Section 3(3) of the Societies Registration Act, 1860.
5. Before the matter could be decided by the Basic Shiksha Adhikari, as directed by the Court, one Ravindra Kumar filed Civil Misc. Writ Petition No. 39867 of 2004 claiming an independent right to be heard in the proceedings pending before the Basic Shiksha Adhikari. This writ petition was finally disposed of vide judgment and order dated 27th September, 2004 with a direction upon the Basic Shiksha Adhikari to entertain and decide the claim of Ravindra Kumar also. Against the order of the Single Judge, Special Appeal No. 1385 of 2004 was filed which was dismissed with the observations that objections raised may be urged before the Basic Shiksha Adhikari himself.
6. In compliance of the order of this Court referred to above, the Basic Shiksha Adhikari under order dated 1st January, 2005 recognised the Committee of Management with Sri Krishna Narayan Upadhaya as the Manager as lawful with a right to manage the institution.
7. Feeling aggrieved by the said order, two writ petitions were filed, first by the Committee of Management with Sri Ramesh Chandra Misra in his capacity as Manager being Civil Misc. Writ Petition No. 32327 of 2005 and other by the Committee of Management with Sri Ravindra Kumar in his capacity as Manager being Civil Misc. Writ Petition No. 1572 of 2005.
8. Before the Hon'ble High Court three claims were set up in respect of the right to manage the institution,
(i) by Krishna Narayan Upadhyaya who claimed to be manager of the society registered in the year 1978,
(ii) (ii) by Ramesh Chandra Mishra, who claimed to be Manager of the original society, which was registered in the year 1968,
(iii) by Ravindra Kumar, who also claimed to be lawful manager of the same society established in the year 1968.
9. While the aforesaid two writ petitions were pending, Ramesh Chandra Mishra obtained an order on an application for renewal of the Registration Certificate of the society in his favour. The Assistant Registrar, Firms, Societies and Chits also registered the list of office bearers submitted for the year 2002-03 and 2003-04 by Ramesh Chandra Mishra vide order dated 22.03.03 and dt. 3.05.03 respectively. Objections were filed against the same by Ravindra Kumar, which were rejected by the Assistant Registrar, Firms, Societies and Chits vide order dated 28th February, 2003. Ravindra Kumar filed an appeal before the Commissioner against the said order. The Commissioner, Allahabad dismissed the appeal by means of the order dated 7th April, 2003. Feeling aggrieved by the said order, Ravindra Kumar filed Civil Misc. Writ Petition No. 16954 of 2003. The writ petition was allowed under judgement and order dated 26th February, 2004 and the order of the Commissioner dated 7th April, 2003 was quashed. The matter was remanded to the appellate authority for consideration afresh. On 18th May, 2004, the Commissioner, Allahabad allowed the appeal filed by Ravindra Kumar whereby the registration granted in favour of Ramesh Chandra Mishra (present petitioner) was quashed. Feeling aggrieved by the said order of the appellate authority, Ramesh Chandra Mishra filed Civil Misc. Writ Petition No. 35113 of 2004.
10. All these three writ petitions (Civil Misc. Writ Petition Nos. 35113 of 2004 , 32327 of 2005 and 1572 of 2005) were clubbed together and were decided under a common judgment of this Court dated 23rd March, 2006. A copy of the said judgement of this Court has been enclosed as Annexure-31 to the writ petition. This Court held as follows:
Once renewal is accorded to old society with changed name on 18.05.1979, then same relates back to the date when society had become unregistered, and the net effect of the same is that resolution dated 03.12.1978 and subsequent registration stands obliterated, as it own its existence on account of society being unregistered. In these circumstances and in this background necessary consequence of renewal as already mentioned is that society with the name of Hari Shyam Khadi Gramodyog Sewa Sabha being in existence is only entitled to run and manage the affairs of the Junior High School, the second society with the name of Hari Shyam Khadi Gramodyog Sewa Samiti cannot be permitted to operate. Once the registration of original society has been renewed with the same registration number, and this being undisputed position that said society has established Junior High School, then it is only Hari Shyam Khadi Gramodyog Sewa Sabha, which is competent to run and manage the affairs of the institution and not any other society, and the second society for all practical purposes has to be treated as rank trespasser and usurper until and unless order of renewal or renewal of registration certificate is got cancelled or set aside in proceedings under Section 3-B or Section 12-D of Societies Registration Act. 1860 or by way of declaration in civil suit, the same will hold the field and will have to be given its due weightage.
11. In view of the aforesaid conclusion, so far as the parallel society registration in 1978 with Sri Krishna Narayan Upadhyaya as the Manager is concerned, the same has lost its right to claim management of the institution so long as it does not get its rights declared by way of Civil Suit or till the registration of earlier society is revoked.
12. The other dispute between Ramesh Chandra Mishra (present petitioner) and Ravindra Kumar (respondent No. 6) with regard to their right to be lawful office bearers of Hari Shyam Khadi Gramodyog Sewa Sabha (society registered in the year 1968) was examined by the Hon'ble Single Judge under the same judgement. It is worthwhile to reproduce the findings recorded by this Court in that regard, which read as follows:
Order in appeal reflects that Commissioner has proceeded on presumption that in the meeting dated 14.5.1991 Ravindra Kumar was elected as Vice President, and said proceedings have been verified by Asthbhuja Prasad Dubey. and in the election dated 12.10.1995 Ravindra Kumar had been elected as Manager/Secretary, and till 11.9.1995 Asthbhuja. Prasad Dubey was Manager/Secretary, and thereafter Ravindra Kumar had been running the institution. Commissioner has totally ignored this aspect of the matter, that in proceeding dated 14.5.1991, Tej Pratap Shukla had resigned and in his place Ravindra Kumar claimed to have been elected as Deputy Manager. Said Tej Pratap Shukla filed his affidavit as Manager before Assistant Registrar supporting the version of petitioner, and this finding has not at all been assailed in appeal. The Commissioner has also made totally wrong and perverse observations qua running and managing the affairs of the institution, as undisputed position is that pursuant to order dated 10.01.1994 passed by District Basic Education Officer initially Ravindra Nath Mishra and after his death Krishna Narain Upadhaya had been running and managing the affairs of this instruction. Ravindra Kumar in Civil Misc. Writ Petition No. 16954 of 2003, had filed rejoinder affidavit, certified copy of which has been produced and contents of which have not been disputed. In paragraph 7, Ravindra Kumar admitted and mentioned that institution in question is run and managed by society known as Hari Shyam Khadi Gramodyog Sewa Samiti of which Ravindra Nath Mishra is manager, and also further mentioned that said institution is not being run and managed by society known as Hari Shyam Khadi Gramodyog Sewa Sabha. Statement of fact mentioned by Ravindra Kumar clearly exposes him and his stand in the matter, and further there is a reason for the same. In paragraph 28 of writ petition, categorical statement of fact has been mentioned that Ravindra Kumar is no once else than son of Krishna Narain Upadhyaya. This categorical statement of fact has not at all been disputed in paragraph 15 of the counter affidavit, and thus it has been admitted by Ravindra Kumar that he is son of Krishna Narain Upadhyaya. In paragraph 11 of the counter affidavit, attempt has been made by Ravindra Kumar to confuse his identity, by mentioning that he is Ravindra Kumar son of Kripa Narain and has no concern with the society said to be run and controlled by Krishna Narain Upadhaya in the name of Hari Shyam Khadi Gramodyog Sewa Samiti. Nowhere Ravindra Kumar dared to mention that Krishna Narain Upadhayaya and Kripa Narain are both separate entitles and have no concern with each other, and incorrect statement of fact has been mentioned qua Krishna Narain Upadhaya. All these circumstances clearly prima facie discredit the claim of Ravindra Kumar and suggests that strategically he has been set up and is a mere stooge of Krishna Narain Upadhyaya. The observations made, by the Assistant Registrar, qua papers submitted by Ravindra Kumar that the same is an outcome of after thought are prima facie reghtful observations, in the facts and circumstances of the case in hand, and said observations clearly suggested that in the opinion of authority, they were procured document.
13. The Hon'ble High Court thereafter held that the Commissioner as well as Assistant Registrar have misdirected themselves and have failed to exercise the jurisdiction vested with them. Consequently the orders of the Assistant Registrar as well as that of the Commissioner were quashed and the matter was remanded to the Assistant Registrar for deciding as to whether the resolution dated 12.10.1995, and the elections held thereafter dated 28.4.2000 and 28.4.2005 (set up by petitioners) are genuine proceedings or in-genuine proceedings. For the said purpose 3 issues were framed by the Court itself. For ready reference the operative portion of the judgment and order of this Court dated 23rd March, 2006 is being quoted below:
Neither the Commissioner nor the Assistant Registrar has recorded any finding on this score, and in the facts of the present case both have clearly misdirected themselves, and have failed to exercise jurisdiction vested in them. Consequently, both the orders are quashed and set aside...' Matter is remitted back to Assistant Registrar to decide as to whether resolution dated 12.10.1995. election dated 28.4.2000 and 28.4.2005 set up by petitioners are genuine proceedings or ingenuine proceedings. While judging the validity of the aforementioned proceedings. Assistant Registrar shall advert itself as to whether (1) person who had convened the meeting and held the election, had the authority to convene the meeting and hold election: (2) the persons who had participated in the meeting/election were valid members of the general body of the society; and (3) Meetings and elections were held strictly as per the provisions as contained in the bye laws of the society. Till no finding is returned on this score, Shri Ramesh Chandra Mishra cannot be permitted to function as Secretary/Manager of the institution/society. Interest of institution is paramount, as such till the aforesaid decision is not taken by the Assistant Registrar, Firms, Societies and Chits, the District Basic Education Officer, Alld. shall forthwith take over the administration of the institution, and run and manage its affairs.
Subject to observations made above, all the three writ petitions are allowed. No order as to costs.
14. In compliance of the order of this Court referred to above, the Assistant Registrar, Firms, Societies and Chits has passed the impugned order dated 17th November, 2006, wherein he has held that the meeting dated 12th October, 1995 as well as elections dated 28.4.2000 and 28.4.2005 are not in accordance with the registered bye-laws of the society and therefore, cannot be accepted. He has recorded that valid and legal elections of the office bearers have not taken place in accordance with the registered bye-laws of the society subsequent to 1993 and therefore, in exercise of power under Section 25 (2) he proceeded to direct that fresh elections of office bearers of the society shall be held under his control and for the said purpose Tehsildar, Soraon, Allahabad was authorised to act as Election Officer. It has further been provided under the order that trustee members as existing in the year 1993 alone would constitute the electoral college for the elections of the office bearers.
15. For the purposes of enforcing the order of the Assistant Registrar, Firms, Societies and Chits dated 17th November, 2006, Dwarika Das Rastogi and four others filed Civil Misc. Writ Petition No. 1352 of 2007 for a direction upon the Tehsildar to hold fresh elections at the earliest possible. The writ petition was dismissed vide order dated 18th January, 2007.
16. The Tehsildar on 24th January, 2007 notified the agenda for holding fresh elections of the office bearers and a notice was issued to 11 members as per the list of trustee members of 1993. Three persons mentioned (item Nos. 3, 5 and 7) in this list had expired, namely, Ashthabhuja Prasad Dubey, Sri Shyama Charan Srivastava and Sri Awadhesh Narain Mishra, therefore, three new trustee members, "Savitri Devi", "Manoj" and "Sahoor Vajpayee" had been inducted and have been permitted to participate in the elections. Elections proceedings were completed on 10th February, 2007 and the list of the elected office bearers with Ravindra Kumar as Secretary was forwarded to the Assistant Registrar, Firms, Societies and Chits for registration under Section 4 of the Societies Registration Act, 1860.
17. Against the orders of the Assistant Registrar, Firms, Societies and Chits dated 17th November, 2006 and the agenda notice dated 24th JAN, 2007 the present writ petition has been filed.
18. On behalf of the petitioner it is contended that this Court under judgment and order of this Court dated 23rd March, 2006 required the Assistant Registrar, Firms, Societies and Chits to examine the legality of (a) resolution dated 12th October, 1995, (wherein Sri Ramesh Chandra Mishra is said to have enrolled as trustee member as well as elected as Manager/Secretary) (b) the legality of the elections pleaded by Ramesh Chandra Mishra dated 28.4.2000 and 28.4.2005, with reference to the three issues formulated under order of this Court referred to above.
19. Learned Counsel submits that with regards to Ravindra Kumar, this Court specifically held that he has been set up and is a mere stooge of Krishna Narain Upadhaya, who was none other than his father. The findings of the Assistant Registrar, Firms, Societies and Chits 'to the effect that papers submitted by Ravindra Kumar are an outcome of after thought and are based on procured documents' has been approved by the Court. Again with reference to Paragraph-7 of the Rejoinder Affidavit filed by Ravindra Kumar in Civil Misc. Writ Petition No. 16954 of 2003 (wherein he himself admitted that the institution in question is being run and managed by the society known as Hari Shyam Khadi Gramodyog Sewa Samiti of which Ravindra Nath Mishra is Manager and that the institution is not being run and managed by society known as Hari Shyam Khadi Gramodyog Sewa Sabha) this Court held that the claim of Ravindra Kumar is discredited).
20. It is submitted that in view of the aforesaid conclusions of this Court, Ravindra Kumar's claim did not require any further consideration either by the Assistant Registrar, Firms, Societies and Chits or by the Tehsildar nor he could have been treated to be a valid Trustee member so as to participate in the elections of the office bearers.
21. With regard to the findings recorded qua meeting dated 12th October, 1995, it is contended that Sri Ashthabhuja Prasad Dubey, who was admittedly the Secretary of the society, expired on 11th September, 1995. The meeting dated 12th October, 1995 was convened by Tez Pratap Shukla, who was the then deputy Manager. In the said meeting Ramesh Chandra was co-opted as Trustee Member and in the vacancy caused due to death of Ashthabhuja Prasad Dubey, he was elected as the Manager/Secretary.
22. I have considered the submissions so made.
23. The theory set up by the respondent has been disbelieved on the ground that Tez Pratap Shukla had resigned from the office of the Secretary in the year 1991, therefore, no meeting could have been convened by him on 12th October, 1995.
24. Similarly it has been recorded that if the President of the society was absent, than the Vice-President (upadhyaksha) Smt. Savitri Devi should have presided over the meeting dated 12th October, 1995 while according to the documents filed by Ramesh Chandra, the meeting was presided over by Kanhaiya Lal Patel, no reasons for the same had been furnished. The Assistant Registrar, Firms, Societies and Chits has further recorded that the induction of Ravindra Kumar as trustee member on 11th September, 1995 as well as his being elected as Secretary/Manager on the same date is unacceptable. Lastly it has been recorded that two sets of parallel proceedings of the meeting dated 12th October, 1995, have been filed, Sri Ramesh Chandra Mishra, which record different facts and therefore, such proceedings of the alleged meeting dated 12th October, 1995 cannot be relied upon.
25. In the totality of the circumstances, the Assistant Registrar, Firms, Societies and Chits has disbelieved the papers submitted qua the meeting dated 12th October, 1995. He has proceeded to record that Ramesh Chandra Mishra could not have held elections dated 28th April, 2000 and dated 28th April, 2005 as he was never inducted as valid trustee member nor elected as Manager/Secretary.
26. Findings of fact so recorded in the impugned order by the Assistant Registrar, Firms, Societies and Chits cannot be said to be perverse or based on no evidence, so as to warrant any interference under Article 226 of the Constitution of India. Such findings of fact can be subjected to challenge by way of Civil Suit only which in the facts of the present case, is the proper remedy available to Ramesh Chandra Mishra.
27. The present writ petition in so far as it challenges the order of the Assistant Registrar, Firms, Societies and Chits dated 17th Nov, 2006 is accordingly dismissed with liberty to the petitioner to file a civil suit.
28. After the aforesaid conclusion, the issue which arise for consideration in this writ petition is as to whether the electoral college as determined by the Tehsildar for holding election, under Section 25 (2) of the Societies Registration Act, 1860 with Ravindra Kumar and three new members, namely, Pankaj Misra, Ajay Jaiswal and Sanjay Mehrotra is legally valid or not and as to whether the election dated 10th February, 2007 have been held from a valid electoral college or not.
29. This Court made a query from the learned Counsel for parties including Ravindra Kumar to explain as to whether at any point of time list of office bearers elected on 12th October, 1995 or in the elections held subsequent thereto, was ever registered under Section 4 of the Societies Registration Act, 1860, no reply could be furnished.
30. The Court therefore summoned the original records from the office of the Assistant Registrar, Firms, Societies and Chits , Allahabad and examined the same. From the records produced before this Court it is apparent that subsequent to 1990 absolutely no records are available qua registration of the list of office bearers of the society. Therefore this Court records that subsequent to 1990, no list of office bearers of the society was ever registered under Section 4 of the Societies Registration Act, 1860, (except for the list which was registered in respect of the year 2002-03 on the basis of documents submitted by Ravindra Kumar, the order whereof has already been quashed).
31. On records of the Assistant Registrar, Firms, Societies and Chits is a list of trustee members of the society of the year 1979, which is identical to the list of trustee members as admitted to the parties upto 1990 except for the name of K.N. Agarwal who had expired and in his place Sri Ram Prasad Maurya was included as the trustee member.
32. This Court may record that under the registered bye-laws of the society total trustee members of the society can be 11 only and it is only from these 11 trustee members that the office bearers are to be elected. There can be no objection of any party with regard to the induction of Ram Prasad Maurya as trustee member inasmuch as in the elections pleaded by Ravindra Kumar (respondent No. 6) participation of Ram Prasad Maurya is admitted.
33. Before the Court, absolutely no material could be placed whereunder it could be established that the induction of Rajik Ram, Kanhaiya Lal and Ram Prasad as trustee members of the society was made in accordance with the registered bye-laws of the society in any valid meeting convened for the said purpose by any lawful Secretary/Manager.
34. This Court may record that between 1982 to 1995 the society with Sri Krishna Narain Upadhaya as manager (father of Ravindra Kumar, respondent no.6) continued in control over the affairs of the institution as well as the society said to be registered in the year 1978. At no point of time Ravindra Kumar challenged such continuance of his father's parallel societies as well as its control over the affairs of the institution. It is only on 28th August, 2002 Ravindra Kumar came into picture and raised objections qua renewal of the registration of the original society granted in favour of the petitioner under order dated 9th August, 2002.
35. In any view of the matter this Court under its judgment and order dated 23rd March, 2006 rejected the claim of Ravindra Kumar after recording a finding that he has been set up, and is a mere stooge of his father, namely, Krishna Narain Upadhyaya.
36. Even otherwise, no facts or reasons have been brought on record which could justify induction of Ravindra Kumar and 3 others (referred to above) as valid trustee in the year 1993. The Tehsildar while acting as Election Officer could not have travelled beyond the directions contained in the order of Assistant Registrar, Firms, Societies and Chits dated 17th November, 2006. He was bound to hold elections from the trustee members existing in the year 1993 only.
37. In such circumstances this Court records that the electoral college notified by the Tehsildar under his order dated 24th January, 2007 is patently illegal. Even otherwise no objections were invalid before finalization of the electoral college. Accordingly the electoral college so determiner being illegal, entire elections held therefrom would fall automatically.
38. In the totality of the circumstances as noticed herein above, the elections held by the Tehsildar on the basis of an illegal electoral college is unsustainable in the eyes of law, the same are hereby quashed. All consequential actions including the registration of the list of office bearers in pursuance to the elections dated 24th January, 2007 would fall automatically. The consequential orders of the Basic Shiksha Adhikari dated 20th February, 2007 and dated 27th February, 2007 "passed by Asst. Ragistrar" on the basis of such bogus elections, are also declared illegal and in operative in the eyes of law.
39. However, it is recorded that this order shall not prejudice the right of Ravindra Kumar or any other member included into the list of the electoral college to seek declaration of his right by way of civil suit.
40. This Court may also record that in the list of office bearers, which has been registered under the order of the Assistant Registrar, Firms, Societies and Chits subsequent to the elections held by the Tehsildar, name of 3 new trustees have been included. No facts as to how these persons have been enrolled and as to in which elections they have been elected as the members of the Executive Committee, have been disclosed..
41. The Tehsildar is commanded by a writ of mandamus to hold fresh elections of the office bearers/members of the Committee of Management of the society as directed under the order of Assistant Registrar, Firms, Societies and Chits dated 17th October, 2006 from the valid members of the Trustee Mandal as per the list available in the office of the Assistant Registrar, Firms, Societies and Chits of 1979 with inclusion of the name of Ram Prasad Maurya as one of the trustee members in place of K.N. Agarwal who has since expired.
42. It is admitted to the parties that from the aforesaid list with the inclusion of Ram Prasad Maurya only 8 surviving members exist. The elections may be held from the amongst these 8 surviving trustee members only. In case any persons is aggrieved by the same, he may agitate his rights before the Civil Court.
43. The writ petition is allowed subject to the observations made above.