Hon'ble Amitava Lala, J. - (1.) THIS special appeal has been filed by the appellant-writ petitioners challenging the judgment and order dated 1 st December, 2010 passed by the learned Single Judge in Civil Misc. Writ Petition No. 69837 of 2010 (Mehdi-ul Hasan Abadi and others v. 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 9th 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 9th May, 2008 nothing was done, again a detailed objection was filed on 25th June, 2008. On 7th 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 3rd 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-UI Hasan Abadi and others v. State of U.P. and others) challenging the aforesaid notice dated 3rd 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 3rd 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 1st 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. 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 judgment of a Division Bench of this Court, presided over by one of us (Amitava Lata, J.), as in Jamia Razjviya Merajul Uloom, Chilmapur, Gorakhpur and another v. State of U.P. and others, 2010 (10) ADJ 84 (DB), is applicable herein. It is also contended that in such judgment, the ratio of Committee of Management Kisan Shiksha Sadan, Banksahi, District Basti and another v. Assistant Registrar Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another 1995 (2) UPLBEC 1242, 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." Therefore, we have to ascertain legal position of the Act alongwith the Uttar Pradesh Amendments at first and then the facts where it will be fitted. Section 4 of the Act alongwith Uttar Pradesh Amendment, is quoted hereunder: "4. Annual list of managing body to be filed(1) Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the Society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar, of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society. Provided that if the managing body is elected after the last submission of the list, the counter signature of the old members, shall, as far as possible, be obtained on the list. If the old office-bearers do not counter-sign the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period. (2) Together with list mentioned in sub-section (1) there shall be sent to the Registrar a copy of the memorandum of association including any alteration, extension or abridgement of purposes made under section 12, and of the rules of the society corrected up to date and certified by not less than three of the members of the said governing body to be a correct copy and also a copy of the balance-sheet for the proceeding year of account."
(3.) ON the other hand, by way of Uttar Pradesh Act 52 of 1975, Section 25 has been introduced, which is quoted hereunder: "25. Dispute 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-bearers 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 officebearer; or (b) that the nomination of any candidate has been improperly rejected; or (c) that the result of the election in so far as it concerns such officebearer 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. Explanation I. A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person (1) induces, or attempts to induce, by fraud, international 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 give or 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, 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." From the plain reading of both the sections it appears to us that when Section 4 deals with annual list of managing body and taking a decision by the concerned Registrar with regard to all the objections received by him, Section 25 deals with the dispute regarding election of office bearers. In the present factual scenario, the dispute was pre-existing with regard to members of the managing body, not with regard to election of the office bearers. The dispute with regard to membership was pending before the appropriate Registrar from 2008 and the notice for holding elections was issued in 2010. As a result whereof, the writ Court by an interim order dated 16th June, 2010 in Writ Petition No. 35236 of 2010 restrained the respondents therein from holding any election pursuant to such notice till the dispute of membership of the society is resolved by the concerned Assistant Registrar. The Assistant Registrar by the order dated 12th November, 2010, impugned in the writ petition, instead of deciding such dispute sent the matter to the President of the trustee committee, against whom objections were raised by the appellant-writ petitioners. Learned Single Judge instead of going into facts of the case has disposed of the writ petition as if it is a dispute of election of office bearers and declared the Writ Petition No. 35236 of 2010, in which the appellants obtained an interim order on 16th June, 2010, as infructuous. Accordingly, impugned order of the learned Single Judge is apparently unsustainable in nature.;