S. C. Mathur, J. - (1.) THIS petition is directed against the election notified to be held on 14th September, 1989 by the Tahsildar Haidergarh, district Barabanki, for constituting Committee of Management for the Senior Basic Jeevan Udhar Madhyamik Vidyalaya, Chauras Garhi, Barabanki. The petitioner's principal grievance is that the date of election has been fixed without there being an authentic voters list. Another grievance of the petitioner is that three has been violation of section 25 (2) of the Societies Registration Act. 1860, for short the Act. The petition has arisen in the circumstances hereinafter indicated.
(2.) ELECTIONS were held on 7th December, 1986 for constituting Committee of Management for the aforesaid institution At this election it was claimed by the petitioner that he was elected Manager. The rival group claimed that elections were actually held in June, 987 at which another Committee of Management had been constituted. This dispute raised by rival claimants came up before the Registrar of Firms, Societies and Chits and he referred the same under section 25 (1) of the Act to the Prescribed Authority (Sub Divisional Magistrate, Haidergarh, Barabanki). The Prescribed Authority by its order dated 1st May, 1989, Annexure 9, held that neither of the contending committees had been legally constituted It was accordingly directed that fresh elections be held within two months. On 17th July, 1989, Annexure 4. Deputy Registrar appointed Tahsildar, Haidergarh, Barabanki, for holding the election in pursuance of the direction made by the Prescribed Authority. The Tahsildar required the petitioner to submit list of members of the Society by 28th July, 1989 The petitioner claims to have submitted a list of 52 members on 28th July, 1989, Annexure 5. Some date was fixed for election. This date was postponed by the Tahsildar by his order dated 14th August, 1989, Annexure 6, on the ground that postal stamps had been supplied to him for giving information of the date of election to the members of the General Body. On 17th August, 1989, Annexure 10, the Tahsildar wrote to the Deputy Registrar saying that there were differences between the President, Sri Ram Bharosey (Opposite party no. 3) and the Manager (the present petitioner) regarding the members of the Society. He requested the Deputy Registrar to send him a recent list of the members of the Society, if he had one with him, by order dated 28th August, 1989, Annenure 8, the Tahsildar fixed 14th September, 1989 at 10 a.m for the election. On 1st September, 1989, Annexure 7, the Tahsildar passed order saying that in view of the order dated 30 August, 1989 passed by the District Basic Education Officer, Barabanki, and the order dated 21st August H88 passed by Sri Ajai Deep Singh, the present Sub-Divisional Officer. Haidergarh, notices of the date of election had been sent to the persons mentioned at serial nos. 1 to 83 of the list submitted on 18th July, 1986. A copy of this list is Annexture 9 to the writ petition. It purports to bear the signatures of the petitioner and the President. On 4th September, 1989. Annexure 11, the Deputy Registrar replied to the Tahsildar's letter dated 17th August, 1989, Annexure 10. In this reply the Deputy Registrar stated that no approved list of members was available in his office nor there was any requirement to obtain such a list. He further stated that the Tahsildar may obtain list of members from the contending parties and get them exchanged between them and obtain their objections and decide them at his own level and prepare a voters list and conduct election on its basis. Despite this letter of the Deputy Registrar, the Tahsildar struck to his schedule of holding election on 14th September, 1989 at 10 a.m. Aggrieved by this action of the Tahsildar, the petitioner filed the instant petition. The petition was taken up on 12th September, 1989 when appearance was put in by Sri D. P. Singh Advocate on behalf of Ram Bharosey, opposite party no. 3. A short counter-affidavit was filed by him and the case was directed to come up on the next day. Liberty had been reserved to the petitioner to file rejoinder-affidavit to the short counter-affidavit which the petitioner availed of. Arguments were heard on lath September, 1989 and judgment was reserved. It had, however, been provided that the election scheduled to be held on 14th September, 1989 may take place but the result thereof shall not be announced. On behalf of the petitioner it is pressed that the list dated 18th July, 1986 is irrelevant for the present election as some of the persons who were members in 1986 have ceased to be members since then. On this basis it is pressed that before election is held a fresh list of members of the Society will have to be prepared. It is also the case of the petitioner that this list has to be prepared by the Registrar himself and this function cannot be delegated by the Registrar to the Tahsildar as he did by his order dated 4th September, 1989. On this ground the validity of the order dated 4th September, 1989 has also been challenged. On the premises hereinbefore mentioned, the election held on 14th September, 989 has been described as illegal and invalid and, therefore, liable to be quashed. For submitting that the list of members has to be finalised by the Registrar himself, reliance has been placed upon sub-section (2) of section 25 of the Act. The learned counsel for the opposite party no. 3 on the other hand contends that under section 25 (2) it is permissible for the Registrar to delegate the entire power exercisable by him under that provision and such a delegation having been made in favour of the Tahsildar, the Tahsildar could finalise the list of members himself and that it was within his jurisdiction to rely upon the list dated 18th July, 1986 on the basis of which election has been held on 14th September, 1989. On this basis it is contended by him that the election held on 14th September, 1989 does not suffer from any illegality or infirmity.
(3.) SECTION 25 deals with disputes regarding election of office-bearers. Under sub-section (1) such disputes are required to be decided by the Prescribed Authority on a reference made to him by the Registrar or by atleast 14th of the members of society registered in Uttar Pradesh. It was in exercise of this power that the Prescribed Authority decided the dispute by order dated 1st May, 1989. Sub-section (2) provides for the follow up action and reads as follows : " 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 meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be prescribed 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 modification. " (emphasis supplied) From the emphasised portion in the above sub-section it would appear that the Registrar undoubtedly has the power to delegate his functions. The question is to what extent the power can be delegated ? Is the power to delegate confined to the matters specified in the immediately proceeding clause viz., the clause reading "and such meeting shall be prescribed over and conducted by the Registrar" or it embraces also the earlier clause which reads "he may call meeting of the general body of such society for electing such office-bearers ? A perusal of section 25 (2) shows that it provides for four distinct matters- (1) When the powers conferred thereunder will be exercised, (2) how the power will be exercised or the manner of exercise of power, (3) the rules which will govern the resultant exercise of power, and (4) delegation of power. In respect of the first matter it provides that the power may be exercised when-(l) an election has been set aside or an office-bearer has been held disentitled to hold office in proceeding under section 25 (1), and (ii) when the Registrar is satisfied that the time specified under the rules of the Society for holding election has expired and no election has been held. The first situation is positive or active and the second is negative or passive. The first situation arises from an order of the Prescribed Authority and the second from inaction of the office-bearers of the Society. In either of the two situations or on existence of both of these, the Registrar is authorised to take a certain step. The step that he is authorised to take is to call meeting of the general body of the Society. The purpose of calling such meeting is also specified viz , to elect office-bearers of the Society. This pertains to matter (2) enumerated above. Up to this stage section 25 (2) does not speak of any functionary except the Registrar. Therefore, up to the stages referred to hereinbefore there is no scope for delegation. Coverage of matters (ii) does not stop here. After the meeting has been called, the next question is- (1) who will preside over the meeting, and (2) how the meeting will be conducted. The first relates to the manner of exercise of power and the latter to the rules applicable to the further exercise of power. About the 1st, section 25 (2) says that the meeting may be presided over by the Registrar himself or by his nominee. It is only here that a functionary other than the Registrar comes in the picture and that is his nominee. The meeting whether presided over by the Registrar himself or by his nominee will have to be conducted in accordance with the rules of the Society relating to meetings and elections. From the scheme of section 25 (2) it appears that the occasion for Registrar to nominate an officer arises only when he decides, after calling the meeting, that the meeting shall not be presided over by him but by some one else. Accordingly the role of the nominee arises only after the meeting has already been called. The essential function of calling the meeting, therefore, has to be performed by the Registrar himself. Once it is held that the Registrar himself as to call the meeting and this function cannot be delegated by him, the next question would be as to who has to finalise the list of voters or members of the Society. For calling meeting of the general body the Registrar will have to fix a date for the meeting and intimate that date to the members of the Society. Without this the calling of meeting will not be complete. For issuing notice to the members, the Registrar must have a valid list of voters or members of the Society. Without such a list it will not be possible for him to give intimation of the date of meeting fixed by him. It is apparent that if any dispute arises regarding the membership of the Society it will have to be decided before the notices are issued. Thus the function of finalising the list is implicit in the function of calling the meeting of the general body. From this it flows that the nominee of the Registrar is not competent to take any decision regarding the list of members, if any dispute in that regard arises. In fact from the scheme of Section 25 it appears that the settlement of dispute of that nature must precede the calling of the meeting. Accordingly, the decision of the Tahsildar to hold election 'on the basis of the list dated 18th July, 1986, about which there was dispute, cannot be sustained. For the same reason the Deputy Registrar's order dated 4th September, 1989, Annexure 11, whereby he required the Tahsildar to decide dispute regarding membership also cannot be sustained The election was held on 14th September, 1989 without there being a valid and finalised list of members. The said election cannot, therefore, be upheld.;