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C/M HARI SHYAM KHADI GRAM UDYOG SEWA SABHA & ORS. versus STATE OF U.P. THRU' SECY. DEPTT. OF BASIC EDU. & ORS.

High Court of Judicature at Allahabad

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C/M Hari Shyam Khadi Gram Udyog Sewa Sabha & Ors. v. State Of U.P. Thru' Secy. Deptt. Of Basic Edu. & Ors. - WRIT - C No. 32327 of 2005 [2006] RD-AH 6410 (23 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.    

                                                                                   Reserved

Civil Misc. Writ Petition No.32327 of 2005

Committee of  Management,

Hari Shyam Khadi Gram Udyog Sewa Sabha,

Malak Harhar, Allahabad and others  

Versus

State of U.P. and others.

Connected with

Civil Misc. Writ Petition No.1572 of 2005

The Committee of  Management,

Hari Shyam Khadi Gramodyog Sewa Sabha,

Malak Harhar, Allahabad and others  

Versus

State of U.P. and others.

AND

Civil Misc. Writ Petition No.35113 of 2004

Committee of  Management,

Hari Shyam Khadi Gram Udyog Sewa Sabha,

Malak Harhar, Allahabad and others  

Versus

State of U.P. and others.

Hon'ble V.K. Shukla,J.

In first two writ petitions, validity of order dated 01.01.2005 passed by District Basic Education Officer, Allahabad, has been questioned by the  Committee of  Management, Hari Shyam Khadi Gramodyog Sewa Sabha, Malak Harhar, Allahabad. In Civil Misc. Writ Petition No. 32327 of 2005, Ramesh Chandra Mishra has claimed himself to be the Manager, whereas in writ petition No.  1572 of 2005 Ravindra Kumar has claimed himself to be the Manager of the institution.

In the district of Allahabad on 23.09.1968 a society was registered in the name and style of  Hari Shyam Khadi Gramodyog Sewa Sangh, Malak Harhar, Allahabad bearing registration No.1-19147. The said society had established an institution up to Junior High School level known as Uttar Pradesh Balika Junior High School, Malak Harhar, Allahabad. Temporary recognition was accorded to the same on 08.02.1974 and permanent recognition was accorded to the same on 24.06.1976. One Asthbhuja Prasad Dubey had been performing and discharging duties as Manager/Secretary of the society as well as of the institution. On 06.01.1976 an order was passed on behalf of the Director of Education in exercise of power vested under paragraph 315 of the U.P. Education Code, whereby payment of grant through management was suspended and District Basic Education Officer (Mahila) was authorised to disburse the salary from Government Fund to the approved teachers of the institution. Consequent to the said order being passed, consequential order dated 16.01.1976 was issued by Additional District Basic Shiksha Adhikari (Mahila). It has been contended that under the provisions of Societies Registration Act, 1860, an amendment was incorporated in the year 1975 making provision for periodical renewal of registration of society, and further the use of word 'Sangh' in the name of society was prohibited. On 31.03.1979 Asthabhuja Prasad Dubey filed an application before the Registrar, Firms, Societies and Chits seeking renewal of registration of the society. On the said application being moved, objections were raised by means of communication dated 23.04.1979 objecting to the use of word 'sangh' in the name of society, as such resolution was passed for substitution of word 'Sangh' by the word 'Sabha'. Thereafter papers were transmitted for renewal based on such amendments and renewal certificate was issued on 18.05.1979. It has been contended that said renewal  has been renewed from time to time. It has been asserted that two teachers of the institution, namely  Savitri Tiwari and Rani Shukla were terminated and then in well calculated design rival management  under a rival society was got registered for the first time in the year 1978. The said registration was made on 18.12.1978, in the name of Hari Shyam Khadi Gram Udyog Sewa Samiti with registration No.4849/78-79 by the Committee of Management with Ravindra Nath Mishra as Manager and Krishn Narain Upadhyaya as Deputy Manager. It has been contended that said society registered on 18.12.1978 was totally unconnected with earlier society Hari Shyam Khadi Gram Udyog Sewa Sangh and the institution run by it in the name of U.P. Balika Vidyalaya Junior High School, Malak Harhar, Allahabad. Petitioner has contended that in spite of the fact that they had no concern with the management of Junior High School, original suit No.555 of 1978 had been filed in the court of Munsif (East) Allahabad. The said suit was filed for permanent injunction not to interfere with the administration and possession of the plaintiffs and also for quashing of three orders dated 13.03.1978, 07.06.1978 and 21.07.1978. Reference has also been given of one affidavit filed by Ravindra Nath Mishra filed in response to the counter affidavit of Smt. Rita Rai, paragraph 3, wherein it has been mentioned by Ravindra Nath Mishra that he was not the Secretary/Manager of the institution of which Smt. Reeta Rai alleged herself to be the Head Mistress. Details of orders dated 13.03.1978, 07.06.1978 and 21.07.1978 have been mentioned. Reference has also been given of written statement filed by Awadhesh Chandra Chatrurvedi, the Additional Director of Education (Secondary), U.P. Allahabad, disowning the version of  Ravindra Nath Mishra, and also the affidavit filed by Kamla Devi, Additional District Basic Education Officer, Allahabad.  Details have been given qua dismissal of original suit no. 555 of 1978 by Ist Additional Munsif, Allahabad. It has been contended that  said judgment has attained finality , as it has not been questioned or appealed. Details have been given of the directives issued for running institution in Kachcha Bhavan and the communication  dated 30.08.1979 issued by the Director of Education and the communication dated 24.01.1981 issued Additional Basic Shiksha Adhikari. It has been contended that in compliance with the aforesaid order institution has been run and managed in the premises referred to in the said order. Reference has also been given of another suit  being suit no. 100 of 1981 filed by Ravindra Nath Mishra for injunction for release of  grant and payment of salary to teachers claimed to be regularised by the plaintiff of the suit alone. The said claim was refuted by the Educational Authorities by filing written statement. Original suit No. 100 of 1981 has been dismissed by judgment dated 06.02.1984. It has been stated that the grant of the institution had been directed in the year 1976 to be disbursed through the District Basic Education Officer and not to be released in favour of management. Aggrieved by indefinite continuance of the aforesaid order of single operation, writ petition No.5368 of 1981 was filed before this Court, and this Court  dismissed the aforesaid writ petition with observation to represent the matter before Director of Education which was required to be considered and decided along with the claim of Asthbhuja Prasad Dubey to function as Manager. Pursuant to the said judgment dated 13.01.1988 representation is alleged to have been made, but no action was taken, then fresh writ petition was filed in the year 1989 and directives were issued by Division Bench of this Court on 18.01.1989 to decide the matter. Pursuant thereto, District Basic Education Officer proceeded to pass order dated 06.02.1989  to the effect that there existed dispute as to which particular society was managing the affairs of Junior High School and proceeded to pass order that competent authority to decide such dispute was Registrar, Firms, Societies and Chits under Societies Registration Act, 1860 and made queries from the Assistant Registrar, Firms, Societies and Chits as to which society was the real society. On 28.08.1989, the Assistant Registrar, Firms, Societies and Chits passed an order mentioning therein that both the societies have got their separate managing committee, there is difference of name, as such both had valid registration and dispute was decided accordingly. Pursuant to order passed by the Assistant Registrar, Firms, Societies and Chits, the District Basic Education Officer proceeded to pass order on 19.09.1989 recognizing the Committee of Management headed by Ravindra Nath Mishra as Manager. The said order was followed by  order dated 28.08.1990 passed by the Director of Education. The orders dated 19.09.1989 and 20.08.1990 were challenged by Asthabhuja Prasad Dubey by filing writ petition No.20957 of 1990, which was decided by judgment dated 21,.09,1993 and the orders dated  19.09.1989 and 20.08.1990 were quashed, and it was mentioned that on summary basis District Basic Education Officer is to decide as to who is entitled to manage the affairs of the institution as well as who is in effective control. Again thereafter pursuant to judgment dated 21.09.1993, District Basic Education Officer, Allahabad passed order dated 10.01.1994 recognizing the Committee of Management headed by Ravindra Nath Mishra on the footing that he was the Secretary of Hari Shyam Khadi Gram Udyog Sewa Samiti, Malak Harhar Allahabad. Said order was subject matter of challenge in writ petition No.8577 of 1994 before this Court. During pendency of the aforesaid writ petition Asthbhuja Prasad Dubey expired on 11.09.1995, whereafter Ramesh Chandra Mishra claimed himself to be elected as member of Trustee Mandal as well as Manager/Secretary. Thereafter election is claimed to have been held on 28.04.2000,wherein Bankey Lal Yadav was shown to have been elected as President and  Ramesh Chandra Mishra as Secretary/Manager. Ramesh Chandra Mishra applied before the Assistant Registrar, Firms, Societies and Chits seeking renewal  of registration of society, which was accepted on 09.08.2002. Thereafter one Ravindra Kumar claiming himself to have been elected as Secretary/Manager applied for cancellation of registration. Notices were issued to both  Ramesh Chandra Mishra and Ravindra Kumar. Ravindera Kumar  son of Krishna Narain Upadhyaya  claimed himself to be elected as Manager after the death of Asthbhuja Prasad Dubey. Assistant Registrar  rejected the claim of Ravindra Kumar by order dated 28.02.2003. Against the said order appeal had been filed under Section 12-D of the Societies Registration Act, 1860. The said appeal was rejected on 07.04.2003, against which writ petition No. 16954 of 2003 had been filed and this Court  allowed the writ petition on 26.02.2004 and remanded the case back to be decided afresh by the Commissioner, Allahabad Division, Allahabad. On 22.04.2004, this court finally decided Civil Misc. Writ Petition No.8577 of 1994 and mentioned that the only controversy between the parties is as to whether society with the name of Hari Shyam Khadi Gramodyog Sewa Sabha, the registration whereof has been renewed with the changed name is entitled to manage and run the institution in the name and style of U.P. Balika Vidyalaya Junior High School, Malak Harhar, District Allahabad or the new society registered in the name of Hari Shyam Khadi Gramodyog Sewa  Samiti with Ravidnra Nath Mishra is entitled to manage the affairs of the institution. Contention raised qua renewal of society with the changed name was dealt as follows:

"The contention raised on behalf of the respondent that the renewal of the society cannot be done with the changed name is totally misconceived and is based on misreading of the provisions of Section 3A (6) read with Section 12-A of the Societies Registration Act. In the facts of the case it is not in dispute that the change of name by deletion of the word  "Sangh" from the society, was necessitated in view of U.P. Act No. 52 of 1975. It was always open to the society to seek renewal of its registration  with the deletion of the word "Sangh" even after expiry of its original registration  in accordance with the provisions of  of the Societies Registration Act and there is no basis for contending that the renewal of the society cannot be granted with the changed name once its registration has expired. Reference in that regard is made to Section 3 (3) of the Societies Registration Act, which permits renewal of registration of the society even after its earlier registration has expired.

Even otherwise, the said contention of Sri P.N. Saxena, Senior Advocate, runs contrary to the pleading as made in counter affidavit para A. B. C. D. and E. In paragraph 10E it is stated that the said action of the Registrar was uncalled for and illegal and Registrar should have referred the name of deponent (Ravindra Nath Mishra) to get the renewal of the aforesaid society to the State Government under Section 3B of the Act. Para 10E of the counter affidavit  is being quoted herein below:

'That the aforesaid action of the Registrar was uncalled for and illegal as the  Registrar should have referred the matter regarding the deponent's claim to get the renewal of the aforesaid society to the State Government under Section 3B of the Act."

In such set of fact, the order passed by the Zila basic Shiksha Adhikari cannot be legally sustained. The order passed by the Zila Basic Shiksha Adhikari is hereby quashed.

The matter is remanded to the Zila Basic Shiksha Adhikari top decide the dispute with regard to the claim of rival parties  to manage the institution  afresh strictly in the light of the judgment passed by this Court earlier vide order dated 21.9.93 in writ petition No.20957 of 1990.

It is needless to point out that on remand, the Zila Basic Shiksha Adhikari  shall take into consideration all necessary facts including control over the finance of the institution, control over the teachers and staff of the institution, recognition of the office bearers by the educational authorities etc. While recording the finding as to which of the society  is entitled to manage the said institution. the Zila Basic Shiksha Adhikari shall also take into consideration and pass reasoned order on the case pleaded by the parties."

Thereafter, the Commissioner, Allahabad passed order on 18.05.2004 and thereby set aside the order dated 28.02.2003 passed by the Assistant Registrar, Firms, Societies and Chits, and thereafter consequential order was passed  on 03.07.2004 by  Assistant Registrar. Against order dated 18.05.2004 writ petition No.35113 of 2004 was filed. On presentation of the said writ petition interim order had been passed on 27.08.2004. While the aforesaid dispute was going on, on 28.05.2004, District Basic Education Officer passed order holding therein that educational institution was being run by subsequently registered society of which Krishna Narain Upadhyaya was the Manager/Secretary. The order dated 28.05.2004 has been challenged in writ petition No. 35107 of 2004. This Court quashed the order dated 28.05.2004 and remitted the matter back to be decided afresh on 01.09.2004 with observation that District Basic Education Officer shall decide the matter strictly in accordance with law having regard to the effects of judgment referred as also to affidavits filed in the suit proceedings. After remand while District Basic Education Officer was to hear the matter, Rvindra Kumar son of Krishna Narain Upadhyaya filed writ petition No.39867 of 2004 before this Court claiming his entitlement to be heard in  proceedings before the District Basic Education Officer. The said writ petition was disposed of vide order dated 27.09.2004 by asking authority to entertain claim and decide the same as per judgment dated 01.09.2004. Special Appeal No.1385 of 2004 challenging the order dated 27.09.2004 was dismissed with the observations that objections  being urged in special appeal should be urged before the District Basic Education Officer, before whom disputer was pending. Thereafter, District Basic Education Officer  has passed order on 01.01.2005, against which two writ petitions have been  filed.

In writ petition No.32327 of 2005 short counter affidavit has been filed, to which short rejoinder affidavit has been filed, and it has been contended that detailed counter affidavit filed in writ petition No.1572 of 2005  should be read as counter affidavit in both the writ petitions. Counter affidavit filed on behalf of Krishna Narain Upadhyaya mentions that initially in the year 1968 society known as Hari Shyam  Khadi Gramodyog Sewa Sangh was registered. The said society started institution  up to Junior High School, viz.  U. P. Balika Vidyalaya Junior High School, to which recognition was accorded initially on temporary basis  and subsequently on permanent basis on 24.06.1976. It has been contended that Asthbhuja Prasad Dubey was Secretary/Manager. Certain major irregularities were committed by him  for which show cause notice was issued to him on 15.06.1975, and thereafter it has been asserted that in the meeting dated 29.06.1975 he was suspended from the post of Manager/Secretary and one  Bhai Lal Aherwal was appointed as Manager/Secretary till the next election. It has been contended that on account of management dispute Deputy Director of Education passed order suspending the grant of institution. It has been contended that thereafter Bhai Lal Aherwal resigned from the post of Manager/Secretary, and Krishna Narain Upadhyaya was appointed as acting Manager/Secretary till the next elections were held. Thereafter, it has been asserted that elections were conducted on 06.06.1976, wherein Ravindra Nath Mishra was elected as Secretary/Manager and Sri Krishna Narain Upadhyaya as Assistant Secretary. Details have been given in regard to amendment under Societies Registration Act as applicable to U.P. in the year 1975, wherein the society was not permitted to include the word 'Sangh' in the name of the society. It has been contended that thereafter resolution was passed on 03.12.1978 and in place of word 'Sangh' word 'Samiti' was substituted. It has also been contended that by means of the said resolution it was also resolved that before renewal of registration of society it was necessary to remove office bearers of society and fresh elections of the office bearers of the society be held. It has been contended that  thereafter fresh election was conducted, wherein Ravindra Nath Mishra was elected as Manager/Secretary and Krishna Narain Upadhyaya as Assistant Secretary. It has been further asserted that pursuant thereto Registrar, Firms, Societies and Chits sent letter dated 18.12.1978 to Ravindra Nath Mishra informing and intimating that society in question has become unregistered society as on date, as such society in question can be re-registered. It has been contended that  as resolution had already been passed, Registrar by order dated 18.12.1978 registered the society in the name of Hari Shyam Khadi Gramodyog Sewa Samiti. It has been also contended that this society Hari Shyam Khadi Gramodyog Sewa Samiti has been running and managing the affairs of the institution and certificates have been issued in this respect. Details have been given qua suspension of Head Mistress. It has also been mentioned that Ravindra Nath Mishra sent letter dated 07.12.1995 to the Additional Director of Education for release of grant, and thereafter, it has been contended that by means of order dated 27.12.1995 grant in question had been released  in favour of the institution in question and details have been furnished that order of single operation had been revoked on 07.12.1996. Sri Ravindra Nath Mishra made various appointments. Other facts have been mentioned to show effective control, and in this background, it has been asserted that the view which has been taken by concerned authorities  is correct view and warrants no interference by this Court.

Sri Ashok Khare, Senior Advocate and Sri R.K. Ojha, Advocate, contended with vehemence that District Basic Education Officer has clearly erred in law in passing the impugned order, inasmuch as at no point of time any endeavour has been made to decide the dispute in its correct perspective. The observations, which have been made qua effective control, are incorrect and perverse observations and not at all sustainable, and coupled with this in spite of precise observation made by this Court, the own admission by the educational authorities in the original suit and written statement has been ignored, as such decision making process is faulty on the face of it, and impugned order in question is liable to be quashed. Apart from this, it has been contended that petitioner society alone is entitled to run and manage the affairs of the institution, and as in the past on earlier occasions  remand order has been passed and the authorities concerned again and again have passed illegal orders,and as far as petitioners are concerned, for getting justice  they had to approach this Court again and again, as such it would be expedient and in the interest of justice that this Court itself decide the dispute at its level  and answer the question as to which of the society is entitled to run and manage  the affairs of the institution in question.

Sri P.N. Saxena, learned Senior Advocate, on the other hand, contended with vehemence that order which has been passed is strictly in consonance with the directives issued by this Court, and the finding of fact which has been returned qua entitlement of respondents and effective control being based on record, no interference is warranted by this Court. Argument to the similar effect has been advanced by learned Standing Counsel.

After respective arguments have been advanced, the factual position which emerges is to the effect that on 23.09.1968, society was registered in the name of Hari Shyam Khadi Gramodyog Sewa Sangh, Malak Harhar, Allahabad with registration No.1-19147. This fact is also not disputed that the said society had established a Junior High School, which was initially accorded temporary recognition and thereafter permanent recognition. Temporary recognition for running classes 6 to 8 was accorded on 20.12.1968, thereafter recognition to primary section, i. e., from class 1 to 5 was accorded on 08.02.1974 and permanent recognition was allowed by Mandliya Balika Vidyalya Nirikshika on 24.06.1976.  This fact has also not been disputed  that an order was passed on 06.01.1976 canceling the grant, then salary was to be disbursed under the signature of Basic Shiksha Adhikari (Mahila). In the year 1975 amendment had been made , wherein provision for periodical registration had been provided and further use of word 'Sangh' was also prohibited. Respondents claim that resolution was passed on 03.12.1978 by the general body of the society , wherein it has been mentioned that society Hari Shyam Khadi Gramodyog Sewa Sangh  has become unregistered, and as such same is not in existence,  as such in this background, as Asthabhuja Prasad Dubey has failed to get society in question renewed in spite of time being accorded, and it is not possible to  get society in question renewed, consequently, it was resolved to get Memorandum of Association and By-laws cancelled, and to frame new Memorandum of Association and By-laws and get the society newly registered. On the same date various other resolutions have been passed.   On 18.12.1978 letter was written to Ravindra  Nath Mishra pursuant to his letter dated 03.12.1978 informing him that re-registration can be done, as till the said date no other society with the same name had been got registered. further it was mentioned that word "Sangh" has been used in the name of society which is prohibited in terms of Section 3 (2) (d) of the Act No. 52 of 1975, consequently, proceedings be undertaken in terms of Section 12-A for change of name of society, and thereafter paper be transmitted. Most surprisingly, this letter dated 18.12.1978 has been sent pursuant to letter dated 03.12.1978 and on 03.12.1978 itself meeting has been shown to taken place at 10  A.M. pursuant to which various resolutions referred to above have been passed and on the same date, i. e., 18.12.1978, fresh registration has been accorded to society namely, Hari Shyam Khadi Gramodyog Sewa Samiti. Asthabhuja Prasad Dubey took steps for renewal of registration of society  on 31.03.1979 of unregistered original society withthe changed name Hari Shyam Khadi Gramodyog Sewa Sabha and renewal was accorded on 18.05.1979. This Court on 22.04.2004 had given categorical direction to decide as to which of the society  is entitled to manage the same institution, and for deciding this question, all necessary facts, including control over the finance of institution , control over the staff of institution, recognition of office bearers by educational authorities  be adverted to, and further on 01.09.2004 these directives stood qualified by mentioning that effect of earlier judgment referred to an d affidavits filed in suit proceeding be also adverted to while taking decision, in accordance with law. In the light of directions issued by this Court, impugned order dated 01.01.2005 is being looked into and adverted to. Impugned order makes mention of the fact that starting point of dispute starts when renewal was obtained. Impugned order also mentions   that when new registration was got done on 18.12.1978 pursuant to resolution dated 03.12.1978 then getting renewal of old society on 18.05.1979 was beyond comprehension, and as documentary  evidence establishes that institution in question is run and managed by Hari Shyam Khadi Gramodyog Sewa Samiti, Malak Harhar, District Allahabad, as such Krishna Narain Upadhyaya  be accepted as Manager. Qua entitlement  of which of the society is entitled to run and manage the affairs of the institution, in fact, no exercise,whatsoever, has been undertaken, except for the observation noted above. What would be the effect of the renewal of registration of original society, has altogether  been ignored. At this juncture provisions of Section 3-A and Section 3B of the Societies Registration Act is being quoted below:

"3-A. Renewal of certificate of registration.-(1) Subject to the provisions of sub-section (2), a certificate of registration issued issued under Section 3 shall remain in force for a period of two years from, the date of issue:

Provided that a certificate issued before the commencement of the Societies Registration Act (Uttar Pradesh Amendment) Act, 1984 (hereinafter in this section   referred to as the said Act), shall remain in force for a period of five years from the date of such commencement on payment of difference of the fees specified under sub-section (3) and the fees alreadh paid.

(2) A society registered under Section 3, whether before or after commencement of the said Act shall on application made to the Registrar within one month of the expiration  of the period referred to in sub-section (1) and on payment of the fees specified in sub-section (3) be entitled to have its certificate of registration renewed for five years at a time.

Provided that in the case of society registered before the commencement of the said Act, the Registrar shall refuse  to renew the certificate of registration, if after giving it an opportunity of showing cause  against such refusal, he is satisfied that any of the grounds mentioned i n sub-section (2) of Section 3 exists in respect thereof.

(3)There shall be paid to the  Registrar with every application for renewal of the certificate of registration-

*** (a) a fee equal to the registration fee payable under Section 3 or rupees two hundred, which ever is less, if such application is filed within the period specified  in sub-section (2):

Provided that the State Government may, by notification in the Official Gazette, increase from time to time thje fee payable under this clause subject to the condition that the fee so increased shall not exceed the registration fee payable under Section 3;

(b) an additional fee of forty rupees or such higher fee not exceeding one-fifth of the fee payable under clause (a) as may be notified by the State Government , if such application is filed within one month of the date of expiration of the period specified  in sub-section (2); and

(c) an additional fee at the rate of twenty rupees per month or part thereof or such higher additional fee per month not exceeding half of additional fee payable under clause (b) as may be notified by the State Government, if such application is filed beyond one month of the expiration of the period specified  in sub-section (2).

(4) Every application for renewal of the certificate shall be accompanied by a list of members of the managing body elected after the registration of the society or after the renewal of certificate of registration and also the certificate sought to be renewed unless dispensed with by the Registrar on the ground of its loss or destruction or other sufficient cause.

(5) A society which fails to get its certificate of registration renewed in accordance with this section within one year from the expiration of the period for which the certificate was operative shall become an unregistered society.

Provided that the Registrar may, for sufficient cause, allow an application for renewal more than one year after the expiration  of the period for which the certificate was operative on payment of a fee of four hundred rupees  or such higher fee not exceeding ten times of the additional fee payable under clause (b) of sub-section (3) as may be notified by the State Government from time to time.

(6) Where a certificate of registration is renewed in accordance with sub-section (2) of sub-section (5) such renewal shall operate from the date of expiration of the period for which the certificate was operative.

3-B. reference to the State Government .- If any question arises whether any society is entitled to get itself registered in accordance with Section 3, or to get its certificate of registration renewed  in accordance with Section 3-A, the matter shall be referred to the State Government, and the decision of the State Government shall be final"

Section 3-A deals with renewal of certificate of registration. sub-section  (2) of Section 3-A deals with renewal  of certificate of  registration for five years at a time. Sub-section (5) of Section 3-A deal with consequence of failing to get its certificate of registration renewed  within one year from the expiration of the period for which the certificate was operative, as having become unregistered society. Proviso added to the same gives liberty to move renewal application even after the expiry of prescribed period, subject to payment of a fees and furnishing of sufficient cause for the same. Sub-section (6) of Section 3-A talks of consequences of renewal of registration  applied either under sub-sections (2) or (5)  and mentions that such renewal shall operate from, the date of expiration of period for which certificate was operative. Section 3-B empowers the State Government to decide the matter,on reference being made, if any question arises whether any society is entitled to get itself registered in accordance with Section 3, or to get its certificate of registration renewed  in accordance with Section 3-A, and the decision of the State Government under the Act is supposed to be final.

Now on the touchstone of these provisions effect of renewal of registration of society is being looked into. In the present case delayed renewal was applied for. Finding the cause sufficient, renewal was accorded on 18.05.1979. Effect of according renewal is that such renewal shall operate from the date of expiration of period for which certificate was operative, meaning thereby that at no point of time society in question was unregistered. Once this is the effect of renewal, can the society with new registration owing its existence on account of non-registration of old society be permitted to stand. Resolution dated 03.12.1978 is again being looked into. Said resolution  speaks that old society  Hari Shyam Khadi Gramodyog Sewa Sangh, Malak Harhar, District Allahabad has become unregistered and is not in existence, and as no steps have been undertaken for getting its registration renewed, and as it is not possible to get its registration done, the old Memorandum and Rules be cancelled and new registration be done. Crux of the said resolution is that old society had become unregistered and it was not feasible to get its registration done and for this reasons and for some other reasons fresh registration be obtained. Once renewal is accorded to old society with changed name on 18.05.1979, then same relates back to the date when society had become unregistered, and the net effect of the same is that resolution dated 03.12.1978 and subsequent registration stands obliterated, as it ows its existence on account of society being unregistered.  In these circumstances and in this background  necessary consequence of renewal as already mentioned is that society with the name of  Hari shyam Khadi Gramodyog  Sewa Sabha being in existence is only entitled to  run and manage the affairs of the Junior High School, the second society with the name of  Hari Shyam Khadi Gramodyog  Sewa Samiti cannot be permitted to operate. Once the registration of original society has been renewed with the same registration number, and this being undisputed position that said society has established Junior High School, then it is only   Hari Shyam Khadi Gramodyog  Sewa Sabha, which is competent to run and manage the affairs of the institution and not any other society, and the second society for all practical, purposes has to be treated as rank trespasser and usurper until and unless order of renewal of registration certificate is got cancelled or set aside in proceedings under Section 3-B or Section 12-D of Societies Registration Act,1860 or by way of declaration in civil suit, the same will hold the field and will have to be given its due weightage.

Once the question posed above has been answered, the other questions become irrelevant, but as in the past this court had directed  to go into the question of effective control, as such order impugned on this score is also being adverted to. Finding of fact has been sought to be returned that Ravindra Nath Mishra was elected as Manager/Secretary on 06.06.1976 and this is fortified from the resolution dated 03.12.1978, and further it has been mentioned that department in the year 1976-77 and 1977-78 accepted Ravindra Nath Mishra, as the Manager. This  finding has been assailed in the writ petition by contending that it is not based on any material.  Same authority in subsequent part of the order has recorded categorical finding of fact that none of the Managers, for the period starting from year 1976 till the middle of January,1994 discharged either financial or administrative function. Thus, self contradictory finding has been returned by the authority concerned, as such, no credibility could be attached to the said finding. Apart from this District Basic Education Officer has totally ignored the stand of Department taken in Civil suit, while refuting the claim of  Ravindra nath Mishra  in said suit. In O.S. No. 555 of 1978 on 28.09.1978 written statesmen had been filed by Sahayak U.P. Shiksha Nideshak clearly disowning claim of Ravindra Nath Mishra mentioning that secretary of society is  Asthabhuja Prasad Dubey. On 25.10.1978 counter affidavit was filed by Km. Kamla Devi, clearly mentioning that Ravindra Nath Mishra had never been either a member of Secretary of society or Manager of School. This Court had given categorical direction to advert to said affidavits, but there is no mention of this stand of department taken on earlier occasion. Finding has been returned on the effective control qua the institution in question by mentioning that since middle of January, 1994 till date society Hari Shyam Khadi Gramodyog Sewa Samiti, Malak Harhar is in control. This Court on the earlier occasion while remitting the matter back, had asked the authority concerned to go into the question of effect of judgment of this Court. From the own showing of respondent, signature of Ravindra Nath Mishra was attested on 07.02.1994 pursuant to order dated 10.01.1994 passed by District Basic Education Officer. Therefore, on account of said recognition order passed, on request being made for release of grant, on recommendation of Additional Director of Education dated 05.12.1995, consequential order  was passed on 27.12.1995 and pursuant thereto again signature of Ravindra Nath Mishra was attested on 09.01.1996 and consequential order was passed on 02.02.1996, and thereafter order of joint operation was passed  on 07.02.1996. Thereafter pursuant to these orders there has been effective control, which was inclusive of issuance of appointment letter. Entry of contesting respondent in the institution and control of institution has been facilitated on account of order dated 10.01.1994 passed by District Basic Education Officer. Said order has been quashed by this Court on 22.04.2002, and while setting aside the said order categorical mention has been made, that no facts have been mentioned by District Basic Education Officer as to how Ravindra Nath Mishra has been in effective control. The fact of the matter is that n the strength of order dated 10.01.1994 initially Ravindra Nath Mishra and thereafter Krishna Narain Upadhyaya  came in control of the affairs of the institution, and once said order has been quashed by this court, then effective control on the basis of said illegal order is of no consequence. The question posed as to how Ravindra Nath Mishra came in control since the middle of January, 1994 has gone untouched. This Court while remitting the matter  back on 22.04.2004 had asked to parties to maintain status-quo, as it exists on the said date, while proceeding to decide matter afresh. Question of control in the present case has been totally misconstrued, and undue benefit has been sought to be extended to group of persons, who were in control on account of illegal order and not on account of their own independent legal rights.

Consequently, as order passed is erroneous on the face of it, as such order dated 01.01.2005 is hereby quashed and set aide.

Facts of third writ petition,namely, Civil Misc. Writ Petition No. 35113 of 2004 have been noted in the earlier part of the judgment rendered in connected writ petition and the order which has been impugned in the present writ petition has also been noted therein.

Sri Ashok Khare, Senior Advocate, contended with vehemence that in the present case Appellate Authority has totally transgressed and overstepped its jurisdiction and totally misdirected itself while allowing the appeal inasmuch as no reason, whatsoever, has been assigned as to why the documents filed by Ravindra Kumar are authentic, and as such the order which has been passed by the Appellate Authority is totally unwarranted, and liable to be set aside. Sri Shashi Nandan, Senior Advocate, assisted by  Sri R.K. Ojha, Advocate, on the other hand, contended that the resolution on the basis of which petitioner has emerged on the scene is self explanatory  and further Assistant Registrar  has only tried to find loopholes in the case of Respondents and while accepting the  claim of petitioners, no exercise has been undertaken, whatsoever,  as such rightful order has been passed by the Commissioner, and no interference is warranted by this Court.

Renewal has been allowed on 09.08.2002. Renewal of registration can be cancelled, under Sub-Section (1) of Section 12-D, clause (c) if renewal has been obtained by fraud or misrepresentation. The burden of proving fraud and misrepresentation is on the incumbent who alleged that order of renewal of registration is based on fraud and misrepresentation. This Court on earlier occasion had already taken the view that against rejection of application for canceling the renewal of registration, appeal is maintainable under Section 12D (2) of Societies Registration  Act , 1860. Power of appellate authority is the same as that of original authority, and even appellate authority can cancel the renewal of registration, if same is obtained by fraud or misrepresentation. However, the appellate authority is not vested with the authority to direct registration, as registration of society is within the domain of Registrar/Assistant Registrar/Deputy Registrar, as the case may be. Order in appeal reflects that Commissioner has proceeded  on presumption that in the meeting dated 14.05.1991 Ravindra Kumar was elected as Vice President, and said proceedings have been verified by Asthbhuja Prasad Dubey, and in the election dated 12.10.1995 Ravindra Kumar had been elected  as Manager/Secretary, and till 11.09.1995 Asthbhuja Prasad Dubey was Manager/Secretary, and thereafter  Ravindra Kumar had been running the institution. Commissioner has totally ignored this aspect of the matter, that in proceeding dated 14.05.1991, Tej Pratap Shukla had resigned  and in his place Ravindra Kumar claimed to have been elected as Deputy manager. Said Tej Pratap Shukla filed his affidavit as Manager before Assistant Registrar supporting the version of petitioner, and this finding has not at all been assailed in appeal. The Commissioner has also made totally wrong and perverse observations qua running and managing the affairs of the institution, as undisputed position is that pursuant to order dated 10.01.1994 passed by District Basic Education Officer initially Ravindra Nath Mishra  and after his death Krishna Narain Upadhyaya  had been running and managing the affairs of the institution. Ravindra  Kumar in Civil Misc. Writ petition No.16954 of 2003, had filed rejoinder affidavit, certified copy of which has been produced  and contents of which have not been disputed. In paragraph 7, Ravindra Kumar admitted and mentioned that institution in question   is run and managed by society known as Hari Shyam  Khadi Gramodyog Sewa Samiti of which Ravindra Nath Mishra  is Manager, and also further mentioned that said institution is not being run and managed by society known as  Hari Shyam  Khadi Gramodyog Sewa Sabha. Statement of fact mentioned by Ravindra Kumar clearly exposes him and his stand in the matter, and further there is a reason for the same. In paragraph 28 of writ petition, categorical statement of fact has been mentioned that Ravindra Kumar is no once else than son of Krishna Narain Upadhyaya. This categorical statement of fact  has not at all been disputed  in paragraph 15 of the counter affidavit, and thus it has been admitted by Ravindra Kumar that he is son of Krishna Narain Upadhyaya. In paragraph 11 of the counter affidavit, attempt has been made by Ravindra Kumar to confuse his identity, by mentioning that he is Ravindra Kumar  son of Kripa Narain, and has no concern with the society said to be run and controlled by Krishna Narain Upadhyaya in the name of  Hari Shyam  Khadi Gramodyog Sewa Samiti. Nowhere Ravindra Kumar dared to mentin that Krishna Narain Upadhyaya and Kripa Narain are both separatre entities and have no concern with each other, and incorrect statement of fact has been mentioned qua Krishna Narain  Upadhyaya. All these circumstances clearly prima facie discredit the claim of of Ravindra Kumar and suggests that strategically he has been set up and is a mere stooge of Krishna Narain Upadhyaya. The observations made, by the Assistant Registrar, qua papers submitted by Ravindra Kumar that the same is an outcome of after thought are prima facie rightful observations, in the facts and circumstances of the case in hand, and said observations clearly suggested that in the opinion of of authority, they were procured document. Commissioner has miserably failed on this score, when he mentions that nothing has been mentioned by the authority that said documents are ingenuine. Qua petitioner, Commissioner  has observed that that there is no mention in the impugned order as to which post was being occupied by petitioner during the tenure of Asthbhuja Prasad Dubey, and neither there is any documentary evidence in this regard, and further no reasons have been disclosed as to why renewal was given in favour of Ramesh Chandra Mishra. In this regard, it would be relevant to note that Ramesh Chandra Mishra has emerged on the scene vide resolution dated 12.10.1995, on which date he claims to  have been accepted as Member of Trustee Mandal  and simultaneously as Secretary/Manager, and further on said date Kanhaiya Lal Patel has been shown to have been elected as President for remainder period . Thus, Ramesh Chandra Mishra was not there during the  continuance of Asthbhuja Prasad Dubey, as such there was no occasion to mention as to what post was being occupied by Ramesh Chandra Mishra along with Asthbhuja Prasad Dubey. Commissioner, however, is right in observing that no reasons have been disclosed as to why renewal has been  accorded in favour of  Ramesh Chandra Mishra. Assistant  Registrar also while passing order  dated 28.02.203, at item No. 7 mentioned that both the parties had adduced evidence in original in support of  their respective version, which has been perused by the  Assistant Registrar, but same has not been sustained. Once this conclusion was being recorded then it was incumbent and obligatory on the part of the part of the Assistant Registrar to have recorded finding  supported by reasons as to whether resolution dated 12.10.1995 is valid resolution or not, and whether elections dated 28.04.2000 are valid or not and only when claim of petitioner was found acceptable, then only order ought to have followed in favour of petitioner. Commissioner ought to have remanded the matter, once reasons were lacking for according renewal in favour of petitioner, or could have recorded finding at its own level that renewal was obtained by fraud and misrepresentation. Commissioner has chosen, in the present case, otherwise by directing  that claim of appellant appears to be authentic , and order passed by Assistant Registrar is unclear, as such appeal is allowed and order dated 28.02.2003 is set aside. Renewal can be cancelled only in the event, if same has been obtained by fraud or misrepresentation. Neither the Commissioner nor the Assistant Registrar has recorded any finding  on this score, and i n the facts of the present case both have clearly misdirected themselves, and have failed to exercise jurisdiction vested in them. consequently, both the orders  are quashed  and set aside. Matter is remitted back to Assistant Registrar to decide as to whether resolution dated 12.10.1995, election dated 28.04.2000 and 28.04.2005 set up by petitioners  are genuine proceedings or ingenuine proceedings. while judging the validity of the aforementioned proceedings, Assistant Registrar shall advert  itself as to whether (i) person who had convened the meeting and held the election, had the authority to convene meeting and hold election; (ii) the persons who had participated in the meeting/election were valid members of the general body of the society; and (iii) Meetings and elections  were held strictly  as per provisions as contained in the by-laws of the society. Till no finding is returned on this score, Shri Ramesh Chandra Mishra  cannot be permitted to function as Secretary/Manager of the institution/society. Interest of institution is paramount, as such till the aforesaid decision is not taken  by the Assistant Registrar, Firms, Societies and Chits, the District Basic Education Officer, Allahabad, shall forthwith take over the administration of institution, and run and manage   its affairs.

Subject to observations made above, all the three writ petitions are allowed. No order as to costs.

23.03.2006

SRY


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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