Allahabad High Court
Sunil Rai And 16 Others vs State Of U.P. And 3 Others on 14 September, 2017
Equivalent citations: 2018 AIR CC 1562 (ALL), 2018 (182) AIC (SOC) 28 (ALL), 2018 (2) ALJ 19, (2017) 125 ALL LR 303, (2017) 5 ALL WC 5229
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 33
AFR
Case :- WRIT - C No. - 42642 of 2017
Petitioner :- Sunil Rai And 16 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Man Bahadur Singh; Sri Ashok Khare
Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Man Bahadur Singh, for the petitioners; learned Standing Counsel for the respondents 1, 2 and 3; and Sri J.P. Singh for the respondent no.4.
As there is no factual dispute in respect of the ground on which this order is being passed, with the consent of the learned counsel for the parties, this petition is being decided finally.
Briefly stated facts giving rise to the present petition are as follows:-
In respect of a society named Ram Krishna Vidya Mandir, Maanpur, District Azamgarh (in short the society), which is registered under the provisions of Societies Registration Act, 1860 (in short the Act, 1860), a dispute in respect of membership of the general body of the society came for adjudication before the Assistant Registrar, Firms, Societies and Chits, Azamgarh Division, Azamgarh (in short Assistant Registrar). The said dispute was adjudicated by the Assistant Registrar vide order dated 28.09.2016 thereby holding that the general body comprises of 44 members. As by the date of such determination election of office bearers of the society had already become over due, a decision was taken to hold election under Section 25(2) of the Act, 1860 and for that end an Election Officer was appointed with an instruction that if any of the 44 members had not paid his membership subscription fee as per the bye-laws/ rules of the society then he should be allowed to vote only after he has deposited such fee. But for such deposit no time limit was fixed.
It appears that the petitioners though were in the list of 44 members determined by the Assistant Registrar but they still had some amount remaining to be deposited towards membership fee to exercise their electoral right.
In the meantime, the election got postponed for one reason or the other and, on 29.06.2017, the Assistant Registrar wrote a letter to the Election Officer requiring him to carry out the election exercise and to ensure strict compliance of the earlier order dated 28.09.2016 which specified that no person who is in arrears should be allowed to participate in the election unless it is ensured that he has deposited the dues. In the order dated 29.06.2017, it was further provided that it is left to the discretion of the election officer to determine whether a person has deposited the dues and is entitled to participate in the election.
Pursuant to the orders of the Assistant Registrar, the Election Officer published an election program on 01.09.2017.
In the election program dated 01.09.2017, by way of Instruction No.2, it was mentioned that each and every member who wishes to cast his vote in the election should produce membership fee deposit receipt of a date anterior to the dispute. It is by this condition/instruction with which the petitioners are aggrieved and have challenged the same by means of this petition.
The contention of the learned counsel for the petitioners is that the Assistant Registrar in his order dated 28.09.2016 had determined the general body comprising 44 members. Therefore, the mandate to the Election Officer to ensure that members who have not deposited the membership fee are allowed to vote only after they have deposited the membership fee would mean that the voting right was dependent on such deposit and nothing more. But, as the date and time of such deposit was neither fixed nor it was specified that such deposit ought to be by such and such date or prior, there was no justification for the election officer to put condition/instruction no.2 in the notified election program. It has been submitted that all the petitioners are willing to deposit whatever balance remains towards the membership fee with the Election Officer and, since the election is still to be held, therefore the petitioners must have opportunity to make such deposit and participate in the election process.
Sri J.P. Singh, who has appeared on behalf of the respondent no.4, has placed reliance on Section 15 of the Act, 1860 so as to contend that in all proceedings under the Act no person is entitled to cast his vote or be counted as a member whose subscription at the time is in arrears for a period exceeding three months. He has submitted that the petitioners are admittedly in arrears for a period exceeding three months, therefore, they cannot be allowed to cast their votes.
To test the aforesaid contention of the learned counsel for the respondent no.4, it would be useful to reproduce Section 15 of the Act, 1860:-
"15. Member defined.- (1) 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.
Disqualified Members.- But in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrear for a period exceeding three months.
(2) Every society shall maintain a register of members giving such particulars as may be prescribed."
A perusal of the definition of a member as extracted herein above would reveal that a member is a person who, having been admitted according to the rules and regulations of a society, has: (a) paid a subscription, or (b) signed the roll or list of members thereof; and has not resigned in accordance with such rules and regulations. Therefore once a person is admitted as a member according to the rules and regulations of a society and if he has either paid his subscription or has signed the roll or list of members, he would remain a member. The first part of section 15 does not provide that for non deposit of annual subscription fee or for any other future membership liability he would lose his membership. The consequence of non deposit of subsequent subscription amount is provided in the second part by providing that no person shall be entitled to vote or be counted as member whose subscription at the time have been in arrear for a period exceeding three months.
The use of the words "at the time" in the second part of section 15 of the Act, 1860 is of significance, particularly when it is read with the opening part of the provision "no person shall be entitled to vote or be counted as a member" which means that at the time of casting vote the member should not be in arrears for a period exceeding three months. This does not mean that if the member is prepared to deposit the arrears and has tendered the same before the date and time of casting votes he would be denied right to cast vote because the arrears are of period exceeding three months. What the second part of Section 15 of the Act, 1860 lays down is that the member should not be in arrears for a period exceeding three months at the time of casting his vote.
However, to ensure that no dispute arises in respect of payment of membership subscription fee on the date of the election, it is always advisable and appropriate that a list of members is published disclosing the arrears of each member and specifying a date for making deposit of such arrears which should, ordinarily, be before the date fixed for cast of votes.
As it is not in dispute that the voting date is 17.09.2017 and no prior date was fixed for deposit of the arrears by the members in the list finalized by the Assistant Registrar, this court is of the view that the petitioners who are indisputably in the list of members determined by the Assistant Registrar are entitled to have an opportunity to deposit the arrears, if any, with the Election Officer before the date and time for casting of votes.
From the election program, which has been brought on record at page 103 of the paper book, it appears that the date of nomination is 17.09.2017 and the date of voting is also 17.09.2017. Under the circumstances, if, by 17.09.2017, the members who are there in the list of members determined by the Assistant Registrar are prepared to make a deposit of the arrears in respect of the membership fee payable by them, they cannot be refused their right to submit nomination papers as well as cast votes.
Accordingly, the writ petition is allowed. The Instruction No.2 as contained in the election program dated 01.09.2017 (Annexure No.10 to the writ petition) is hereby quashed. It is hereby provided that if any of the members shown in the list determined by the Assistant Registrar in his order dated 28.09.2016 deposits the membership subscription fee with the Election Officer by or before the date of the election i.e. 17.09.2017, he shall be allowed to cast his vote and submit his nomination papers. However, to ensure that confusion does not prevail on the election date, it is provided that the Election Officer shall give a window of two hours in the morning of 17.09.2017 say between 8.00 A.M. to 10 A.M. to enable such deposit so that the time schedule of election is not disturbed. To enable that this order is duly complied with, the petitioners may serve copy of this order on the second respondent by or before 16th September, 2017 so that necessary directions are issued for compliance of this order. Apart from above, the petitioners are also free to produce certified copy of the order before the Election Officer (third respondent) for compliance.
Let a copy of this order be supplied to the learned counsel for the petitioners, within 24 hours, on payment of usual charges.
Order Date :- 14.9.2017/AKShukla/-