AMITAVA LALA, J. - (1.) THIS special appeal has been filed by the appellant-writ petitioners challenging the judgement and order dated 01st December, 2010 passed by the learned Single Judge in Civil Misc. Writ Petition No. 69837 of 2010 (Mehdi-ul Hasan Abadi and others Vs. State of U.P. and others), thereby dismissing the writ petition.
(2.) THE facts of the case are that one R.D.M. Shia Trustee Committee, Jaunpur, U.P. (hereinafter in short called as the ''trustee committee') is a society registered under the Societies Registration Act, 1860 (hereinafter in short called as the ''Act') and the appellants claim themselves to be permanent members of the trustee committee. On account of death of 15 permanent members, vacancies were caused. It is alleged that for filling up of such vacancies neither any meeting was called nor any agenda was circulated, but 15 henchmen of Dr. Akhtar Hasan Rizvi, President of the trustee committee-respondent no. 4 herein, and Abiz Rizvi, Secretary of the trustee committee-respondent no. 5 herein, were elected as permanent members in a meeting alleged to have been held on 27th January, 2008. Such President and Secretary of the trustee committee are father and son. The concerned registers pertaining to the trustee committee were in their possession, therefore, manipulation was apprehended, particularly when no information was given to the appellants. Immediately after coming to knowledge, a complaint with regard to the aforesaid facts was made to the Deputy Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi on 09th May, 2008 for not approving the names of such 15 alleged permanent members. On 02nd June, 2008 Joint Secretary of the trustee committee forwarded the list of entire members including the alleged elected members for approval of the Assistant Registrar, Firms, Societies and Chits, Varanasi. When in spite of complaint dated 09th May, 2008 nothing was done, again a detailed objection was filed on 25th June, 2008. On 07th November, 2008 concerned Assistant Registrar issued a notice to the President of the trustee committee as well as the complainant, reply whereof was submitted by the Joint Secretary of the trustee committee on 15th December, 2008 and reiterated that the information was sent to all permanent members through post and after consultation of all trustees names of alleged 15 members were finalized. It is further alleged by the appellants that on one hand, the President and Secretary of the trustee committee have elected 15 permanent members without calling any meeting by forging signature of permanent members and, on the other hand, on 15th March, 2009 they issued receipt to the appellants making them members on the basis of the compromise that out of 15 alleged members, 8 members will resign and the appellants will be included in the place of members so resigning. On 28th October, 2009 permanent members of the trustee committee brought to the notice of the Assistant Registrar that 7 members, who are alleged to have been elected on 27th January, 2008, have given their resignation and in their place the appellants have been given membership after consultation of permanent members in the meeting held on 15th March, 2009. However, when the dispute with regard to genuineness of the members of the trustee committee was pending before the Assistant Registrar, the trustee committee did not accept the subscription of the appellants of the year 2010, therefore, the appellants deposited their membership fee with the official bankers of the trustee committee i.e. Oriental Bank of Commerce, Jaunpur on 28th April, 2010. Since the term of earlier election had expired, on 03rd June, 2010 a notice was issued by the Secretary of the trustee committee by which agenda for election was circulated, firstly for electing the President, Vice-President, Secretary, Joint Secretary and three members of the trustee committee, secondly for electing office bearers of the committee and seven other members and thirdly, for holding election of the committee of Meena Rizvi Girls High School and its members, in the meeting to be held on 20th June, 2010. However, most of the permanent members have stated on oath before the Deputy Registrar that neither any such meeting was convened on 27th January, 2008 nor any agenda was circulated nor they were informed about the meeting. The appellants further alleged that since the dispute with regard to membership was pending before the Assistant Registrar and the President and Secretary were adamant to hold the election, therefore, the appellant-writ petitioners filed Civil Misc. Writ Petition No. 35236 of 2010 (Mehdi-Ul Hasan Abadi and others Vs. State of U.P. and othres) challenging the aforesaid notice dated 03rd June, 2010 and also praying for a mandamus commanding the respondents not to hold any election pursuant to such notice till the dispute of membership is decided by the concerned Assistant Registrar. In such writ petition, a Single Judge of this Court by order dated 16th June, 2010 restrained the respondents from holding any election pursuant to the notice dated 03rd June, 2010 till the dispute of membership of the society is resolved by the Assistant Registrar. On 11th October, 2010 the respondents submitted their reply pursuant to the notice issued by the Assistant Registrar and on the same day the appellant-writ petitioners also filed their objections. On 12th November, 2010 the Assistant Registrar passed an order, whereby instead of deciding issue of membership of the trustee committee he directed the President of the trustee committee to consider the matter of membership of the appellant-writ petitioners. According to the appellants, the Assistant Registrar while passing the order dated 12th November, 2010 has not decided the dispute of membership and kept the matter pending for decision by the President of the trustee committee, whose term has already expired, to commit further illegality. Therefore, the direction of the Assistant Registrar is wholly arbitrary and amounts to colourable exercise of power, which is violative of Article 14 of the Constitution of India. Against such order dated 12th November, 2010 Civil Misc. Writ Petition No. 69837 of 2010 was filed by the appellant-writ petitioners wherein without calling for any affidavit from the contesting respondents, learned Single Judge passed the order dated 01st December, 2010, which is impugned in this appeal. The order impugned passed by the learned Single Judge is as follows: "Heard learned counsel for the petitioners, Sri Indra Raj Singh, learned counsel for respondent no.6 and learned Standing Counsel for the State-respondents. This Court is of the opinion that Assistant Registrar, Firms Societies and Chits, has no legal competence to examine the dispute pertaining to the members of the general body. This Court may record that under the Societies Registration Act, 1860 (hereinafter referred to as the 'Act, 1860'), list of members of the general body is not required to be filed before the Assistant Registrar, Firms, Societies and Chits nor it is required to be registered. It is only when a dispute qua the continuance or otherwise of an office bearer of the registered society is raised, a provision has been made for reference of the dispute under Section 25 (1) to the Prescribed Authority. There is another power vested in the Assistant Registrar, Firms, Societies and Chits under Section 25 (2) where-under if election has not been taken place within the time permitted under the bye-laws of the society or where the elections held are found to be bad in proceedings under Section 25 (1) of Act, 1860 by the Prescribed Authority, the Assistant Registrar, Firms, Societies and Chits can either himself held the elections or to get the elections hold by an officer to be appointed for the purpose. It is admitted on record that no order has been passed by the Assistant Registrar, Firms, Societies and Chits in exercise of powers under Section 25 (2) of Act, 1860 till date in respect of the society in question and therefore, this Court is of the opinion that the order asking the Assistant Registrar, Firms, Societies and Chits to determine the members of the general body of the society duly registered under the Act, 1860, namely, R.D.M. Shia Trustees Committee, Jaunpur, is in teeth of the statutory provisions. The mistake committed earlier has to be rectified. Accordingly, it is provided as follows: The office bearers of the society, who are in effective control over the committee may hold fresh elections of the office bearers of the society in accordance with registered bye-laws of the society. Before holding such fresh elections, a tentative list of members shall be published and objections shall be invited. Parties are at liberty to file their objections, which shall be decided and electoral college shall be determined. After elections are held, any person, aggrieved for the finalization of the electoral college, may file a suit for questioning the electoral college so determined, and after elections are over, he may file reference petition under Section 25 (1) of the Act, 1860. In case any party feels that term of the elected office bearers has already expired and that the elections have not taken place, he is at liberty to approach the Assistant Registrar, Firms, Societies and Chits for exercise of powers under Section 25 (2) of the Act, 1860 and it will be open to the Assistant Registrar, Firms, Societies and Chits to pass an order in accordance with law after affording opportunity of hearing to the parties concerned and if such an order is passed, the parties shall act as per the law. The present writ petition is therefore, disposed of accordingly. Learned counsel for the petitioner states that the earlier writ petition no. 35236 of 2010 filed by the petitioner has become infructuous, therefore, the same be dismissed as infructuous." From the plain reading of the order impugned, it appears to us that without going into the factual controversy an order has been passed by the learned Single Judge on the understanding that the dispute seems to be under State amended Section 25 (1) of the Act.
(3.) LEARNED Counsel appearing for the appellants has contended before us that at the time of deciding the writ petition finally, learned Single Judge neither considered the factual aspect of the matter nor considered applicability of Section 4 of the Act with State amendment/s. It is further contended that ratio of the judgement of a Division Bench of this Court, presided over by one of us (Amitava Lala, J.), as reported in 2010 (10) ADJ 84 (DB) (Jamia Razjviya Merajul Uloom, Chilmapur, Gorakhpur and another Vs. State of U.P. and others) is applicable herein. It is also contended that in such judgement, the ratio of 1995 (2) UPLBEC 1242 (Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and another Vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another) was followed and the Court has clarified the position in paragraph-18 of Jamia Razjviya Merajul Uloom (supra), as follows: "The ratio of this judgment is that where there is a dispute of primary membership of a person for the Society or a complaint is received that a member is not a valid member of the Society, then the Registrar, who under Section 4 of the Act maintains the list of the members, can take cognizance and apply his mind to the facts and declare whether a person is the valid member or not. It appears that the present case is more likely to fall under Section 4 rather than 25 of the Act. The Registrar has simply declared that Fakhruddin Khan is not a valid member of the Committee of Management, hence his appointment as the Secretary/Manager of the Committee of Management, could also not be approved. The Registrar, in his order, has simply decided the membership issue and not the election dispute. Hence the first contention of the learned counsel for the appellants fails to the extent that the Registrar was under obligation to send the matter to the Prescribed Authority. The Registrar was fully competent to decide the membership issue which he has decided vide his order dated 27.3.2010." ;