Arun Tandon - (1.) Heard Sri R. K. Ojha on behalf of the petitioner and Sri A. P. Tiwari for the respondents.
(2.) SRI Hari Lal Ram Rayaka has filed this writ petition against the order dated 16.7.2003, passed by the Assistant Registrar Firms, Societies and Chits, Gorakhpur. By means of the aforesaid order the Assistant Registrar has held that the term of the earlier Committee of Management has expired and therefore the Committee of Management has become time barred. It has further been held that from the list of members of the general body submitted by the parties 93 members were found to be valid members of the general body and therefore in exercise of powers under Section 25 (2) of the Societies Registration Act, 1860 (hereinafter referred to as the Act) the Assistant Registrar has directed for holding fresh elections from amongst the said 93 members under his control and supervision. On behalf of the petitioner it has been submitted that in response to the notice issued by the Assistant Registrar dated 7.11.2002 the petitioner had submitted reply on 21.11.2002 which has been enclosed as Annexure-9 to the writ petition. In the said reply a reference was made to the elections which have taken place on 8.11.2002. The Assistant Registrar while passing the impugned order dated 16.7.2003 has completely ignored the aforesaid elections which had taken place on 8.11.2002. The order passed by the Assistant Registrar does not even make a mention of the reply submitted by the petitioner on 21.11.2002. This Court while considering the scope of powers of Assistant Registrar under Section 25 (2) of the Act in the case of Sita Ram Rai and others v. Additional Registrar Firms, Societies and Chits, Gorakhpur Division, Gorakhpur and others, 2003 (5) AWC 4159 : 2004 ESC 1617 (All), has specifically held that the Assistant Registrar has not been given power to decide the dispute arising out of the elections of the society and thereafter to proceed to pass order under Section 25 (2) of the Act. Such powers have been vested with the prescribed authority authorized by the State Government under Section 25 (1) of the Societies Registration Act. For ready reference para 17 of the said judgment is quoted below : "17. The Assistant Registrar has not been given powers to decide the disputes arising out of the elections of the society. These powers have been given to the prescribed authority authorized by the State Government by notification published in official Gazette. It is only when there is a stalemate, or there are rival committees who have set up the elections after the expiry of the term of the outgoing Committee of Management, and these elections are not found to be valid, and there is no provision in bye-laws to hold elections after expiry of the tenure of executive committee, reasonably inferred from the bye-laws, that the Registrar can step in and provide for elections. He, however, cannot decide on the validity of the members, who are entitled to vote. The election disputes, if any, including validity of members entitled to vote can only be decided under Section 25 (1) by the prescribed authority, and that any person aggrieved thereafter has a right to approach civil court."
(3.) THE said judgment has also been followed in the case of Civil Misc. Writ Petition No. 5526 of 2004, Committee of Management Shoul Uloom Educational Society, Azamgarh and others v. Commissioner, Azamgarh Division, Azamgarh and others, decided on 10.8.2004. In view of the above the Assistant Registrar in exercise of powers under Section 25 (2) of the Act cannot adjudicate upon the legality or otherwise of the elections. In case of dispute with regard to the elections the appropriate remedy for the Registrar is to refer the dispute to the prescribed authority and only after the decision of the prescribed authority the Registrar can proceed in pursuance of the decision of the prescribed authority. In view of the above legal position the order dated 16.7.2003, passed by the Assistant Registrar cannot be sustained.;