Sabhajeet Yadav, J. - (1.) The instant writ petition has been filed challenging the order dated 19.7.2003, contained in Annexure-13 of the writ petition, passed by Assistant Registrar, Firms Societies and Chits, Azamgarh, respondent No. 2 whereby the petitioner's application/objection dated 7.4.2003 contained in Annexure-12 of the writ petition and application dated 19.4.2003 contained in Annexure-12-A of the writ petition against renewal of certificate of registration granted in favour of respondent No. 3 and for correction of list of committee of management of society have been rejected by the respondent No. 2. A further relief in the nature of writ of mandamus has also been sought for directing the respondents not to interfere in the functioning of the petitioner as Manager of the Society in question.
(2.) The brief facts leading to the case are that there is an institution known as 'Maqtav Zya-Ul-Oloom Sansthan' Tari Bara Gaon, District Ballia run by a society registered on 28.10.1992 under The Societies Registration Act, 1860, hereinafter referred to as Act. Initially Sri Sobrati Ansari was Manager and Sirazul was President and Sher Ali was Vice President, Mohammad Ansari was Treasurer, Sarwar Ali was Deputy Secretary including them in all total 11 persons were elected as office bearers and members of Committee of Management of the society. On 8.10.1997 Mohd. Sobrati Ansari was re-elected as Manager and Sirazul as President and Sher Ali as Vice- President. On 28.5.2002 Mohd. Sobrali expired, on account of his death the post of manager fell vacant and on 16.6.2002 Mohd. Sarwar Ali was elected as Acting Manager of the committee. Later on Sri Sarwar Ali resigned from the post of manager due to his personal reasons on 17.9.2002. On the same day in the meeting of general body Mohd. Sher Ali was elected as Manager of the society. Thereafter the signature of Mohd. Sher Ali was attested by Basic Education Officer, Ballia as Manager of 'Maqtav Zya-Ul-Oloom Sansthan' Tari Bara Gaon, District Ballia on 21.9.2002. According to the petitioner all the documents relating to the election of new committee of management and documents by which signature of new Manager, Mohd. Sher Ali was attested were given to Mr. Safiullah and Mukhtar Ansari and they were entrusted with the task of renewal of registration of the society. The petitioner was waiting the renewal but on 15.3.2003 petitioner shocked to know that behind his back the aforesaid two persons have played fraud by fabricating the documents and Mr. Safiullah, respondent No. 3 became Manager of new committee of management and obtained renewal certificate on 27.10.2002. When this fact came to the knowledge of petitioner then he informed the President and other members of committee on same day i.e. 15.3.2003 and an emergency meeting of general body was held and passed a resolution unanimously that the documents submitted by so called Manager Mr. Safiullah pertains to his election is forged and so called election shown by him is quite illegal. The general body has also authorised President and Manager to do needful and also inform the Registrar, Firms Societies and Chits, Azamgarh to cancel the renewal of certificate of registration in favour of Mr. Safiullah. In pursuance of resolution passed by general body the petitioner and President jointly wrote a letter to Assistant Registrar, Firms Societies and Chits, Azamgarh on 7.4.2003 stating the fact of fraud played by Mr. Safiullah and also requested to de-recognise so called committee of management of which Mr. Safiullah is Manager and also cancel the list of members of Managing body, which was registered on 12.12.2002. Thereupon on 5.5.2003 a notice was issued by Assistant Registrar, Azamgarh to Mr. Safiullah to appear on 30.5.2003 but he did not turn up on the date so fixed. Then again on 31.5.2003 a notice was issued to the same effect fixing date for his appearance on 17.6.2003. On the aforesaid date both the parties were appeared and adduced the evidences in support of their respective claim and after hearing them the order was reserved by the Assistant Registrar, which was later on pronounced on 19.7.2003. which is impugned in the writ petition. It is also alleged that surprising feature of impugned order is that respondent No. 2 believed the version of persons on the pretext of presuming them to be member of managing committee, whereas as a matter of fact all those persons have already ceased to be members of the general body in the year 2002 on account of non-payment of dues by a resolution of general body of the society and in their place new members were inducted. Thus the findings recorded by respondent No. 2 are contrary to the evidence on record and wholly erroneous. It is further stated that respondent No. 2 accepted the allegation of so called Manager Mr. Safiullah who has never been the member of society or committee of management but he is only stranger to the society. The impugned order passed by respondent No. 2 is based on extraneous and irrelevant considerations and not on the relevant material on record, therefore, the same is wholly erroneous and not sustainable at all.
(3.) On behalf of respondent No. 3 Mr. Safiullah Answari a detail counter affidavit has been filed in the writ petition, wherein before making parawise reply some facts having material bearing on question in controversy involved in the case have been given. In para 4 of the counter affidavit a preliminary objection has been raised by respondent No. 3 to the effect that against the order dated 19.7.2003 passed by Assistant Registrar, Societies, the petitioner has filed above noted writ petition in individual and personal capacity. The renewal of registration certificate of the society has been granted in favour of respondent No. 3 for a period of five years from 27.10.2002. Thus the writ petition is not maintainable and liable to be dismissed on this ground alone. In para 5 of the counter affidavit it is stated that the society in question was first time registered on 28.10.1992 for a period of five years i.e. upto 31.10.1997. In para 7 of the counter affidavit it is stated that in the year 1995 the respondent No. 3 has deposited Rs. 500/- as necessary fee for life membership to the then Manager of the committee of management Sri Sobrati who had accepted the fee and issued receipt to the respondent No. 3 on 19.2.1995. Since then the respondent No. 3 is continuing as such life member of the society. It is also stated in para 8 of the counter affidavit that the registration of the society was valid only upto 31.10.1997. Thereafter no efforts were made to renew the certificate of Registration of the society as such it became unregistered; hence the committee of management headed by Mr. Sobrati has also been ceased to exist. When Mr. Sobrati Ansari died on 28.5.2002 then committee of management called an urgent meeting to pass condolence resolution under the presidentship of Mr. Sher Ali. In the aforesaid meeting no other resolution of any kind for filling casual vacancy of Manager was passed. Thereafter another urgent meeting was called on 11.6.2002 by issuing necessary agenda in accordance of bye-laws of the society in which an unanimous resolution was passed to elect the respondent No. 3 as Manager of the committee of management. Thereafter the steps were taken for renewal of registration certificate of the society and ultimately vide order dated 28.10.2002 the Assistant Registrar approved the committee of management of the respondent No. 3. It is also alleged that Mr. Sher Ali has fraudulently got his signature attested by District Basic Education Officer as Manager of committee of management by misrepresentation and playing fraud upon him and signature of respondent No. 3 has been attested as Manager of the society on 2.6.2003. It is stated that in pursuance of objections made by the petitioner, Assistant Registrar issued notice to the concerned parties and in pursuance thereof out of 11 members and office bearers of the committee of management, 8 members and office bearers submitted their notary affidavit to the Assistant Registrar on 11.6.2003 in favour of respondent No. 3 refuting the claim of Sri Sher Ali as Manager of committee of management and denying his alleged election by saying that it is imaginary, forged and illegal. Several members and office bearers personally appeared before the Assistant Registrar and made their statements denying the illegal claim of Sher Ali. The aforesaid averments made in counter affidavit of respondent No. 3 were almost supported by the relevant documents enclosed with the affidavit. Assistant Registrar after going through the record and examining the witnesses appeared before him has approved the list of committee of management and office bearers submitted by respondent No. 3 by recording categorical finding of fact in this regard.;