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PRABANDH KARINI SAMITTEE SHRI DIGAMBER JAIN SHIKSHA & ANOTHE versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Prabandh Karini Samittee Shri Digamber Jain Shiksha & Anothe v. State Of U.P. & Others - WRIT - C No. - 40535 of 2007 [2007] RD-AH 14707 (30 August 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 33

Civil Misc. Writ Petition No. 40535 of 2007

Prabandh Karini Samitee

and another

Vs.

State of U.P & others

Hon'ble V.K. Shukla,J

Present writ petition has been filed by Praband Karini Samittee of Shri Digamber Jain Shiksha Samittee Shanti Nath Digamber Jain Mandir Compound Ahinsa Chowk, Hari Parvat, City & District Agra questioning the validity of the order dated 18.08.2007 passed by Deputy Registrar, Firms, Societies & Chits Agra, respondent no. 2 proceeding to exercise its authority under Section 25(2) of the Societies Registration Act, 1860 declaring the Managing Committee of the Society as time barred and proceeding to postpone the election process.

Brief background of the case are that there is a society registered under Societies Registration Act 1860 under the name of Shri Digamber Jain Shiksha Samittee Shanti Nath Digamber Jain Mandir Compound Ahinsa Chowk, Hari Parvat, City & District Agra. Said society in question has been lastly renewed on 12.01.2007 for the period of five years with effect from 10.10.2005. Petitioners claim that tenure of the Managing Committee of the society is four years and in the meeting of General Body of the Society held on 26.03.2007 amendment has been introduced in the bye laws of the society in respect of qualification and eligibility for enrollment as member of the general body including the term of the Managing Committee of the Society. It has been contended that in consonance with the provision as contained under Section 4A of the Societies Registration Act 1860, aforesaid amendment decided upon by the General Body of the Society have been filed before the Deputy Registrar alongwith a covering letter dated 16.04.2007 on 20.04.2007. Last election of the society in questions were held on 27.10.2002 wherein Swaroop Chand Jain was elected as Manager and Akhil Kumar Baruliya as Secretary. On 26.02.2007 decision was taken for initiating process for constituting new Praband Karini Samittee of Shri Digamber Jain Shiksha Samittee after getting said procedure ratified by the general body. In the said meeting one Ashok Jain was appointed as Election Officer. Thereafter meeting of Prabandh Karini Samittee was followed by an meeting of general body held on 26.03.2007 wherein resolution has been passed for extending the term of Praband Karini Samittee by a period of one year and for proceeding with election proceedings. In regard to election proceedings so initiated one Mahavir Prasad Jain and Anurag Jain raised objection before Deputy Registrar, Firms, Societies & Chits and on 20.06.2007 Deputy Registrar, Firms, Societies & Chits rejected the said objection. Thereafter Election Officer issued election schedule on 19.07.2007 as per which the election process was to be take place . On 3rd August, 2007 an order was passed by the District Magistrate, Agra, directing the Additional City Magistrate-I and the District Inspector of Schools, Agra to supervise the election and the Deputy Registrar, Firms, Societies & Chits, Agra was also directed to remain present at the time of election and the District Inspector of Schools was directed to appoint teachers of Government Inter College for conducting counting. In this background on 3rd August, 2007 Deputy Registrar, Firms, Societies & Chits issued consequential order. Against the said order Anurag Jain and Munna Lal Jain filed Original Suit No. 665 of 2007 in the court of Civil Judge (SD) Agra. Application for interim injection was also moved and on 08.08.2007 Civil Judge declined to grant temporary injunction prayed for. As per election schedule nomination papers were filed on 10.08.2007, the same were scrutinized on 12.08.2007 and withdrawal took place on 14.08.2007, and election was to take place on 19.08.2007. Anurag Jain filed some complaint before the Additional District Magistrate, Agra on 18.08.2007 and thereafter Deputy Registrar, Firms, Societies & Chits has proceeded to pass order impugned which is subject matter of challenge.

Short counter affidavit has been filed on behalf of respondent no. 5 and it has been contended that authority under Section 25(2) of the Societies Registration Act 1860 has been rightly exercised as election cannot be permitted to be held by Managing Committee which has become time barred on the expiry of its term of office and further it has also contended that meeting of the General Body is clearly manipulated one to which no credibility could be attached. This Court on 12.07.2007 has refused to interfere with the matter of holding of election copy of said judgment has been appended as Annexure-CA-1 to the counter affidavit, and pursuant to same Civil Suit has been filed, wherein next date has been fixed.

Rejoinder affidavit has been filed and thereafter with the consent of the parties present writ petition has been taken up for final hearing and disposal.

Sri Ashok Khare, Senior Advocate, assisted by Sri V.D. Shukla, advocate, contended with vehemence that order passed by the Deputy Registrar, Firms, Societies & Chits in the present case is totally without jurisdiction, inasmuch as once election process has commenced and this Court has refused to entertain the writ petition and Civil Judge (SD), Agra has refused to grant interim injunction on the application which has been moved for grant of injunction then interference with the election process is totally transgression of the jurisdiction and misuser of the authority as such order impugned is liable to be quashed by this Court.

Sri Udayan Nandan, Advocate, appearing for respondent no. 5 on the other hand contended with vehemence that on admitted position tenure of the Committee of management of the society has come to an end as such it was time barred Managing Committee and time barred Committee Management has no authority to amend the bye laws of the society and further to hold the election and as such rightful decision has been taken and no interference be made by this Court.

In order to appreciate the respective arguments relevant Section 25(2) and (3) of the Societies Registration Act, 1860 are being looked into:

Section 25(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 the 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 ans such meeting shall be presided over and be conducted by the Registrar or by any officer authorized 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 the this section, the expression 'prescribed authority' means an officer or Court authorized in this behalf by the State Government by notification published in the Official Gazette."

A bare perusal of the provision quoted above would go to show that 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 the 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 presided over and be conducted by the Registrar or by any officer authorized 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. Sub-section (3) of Section 25 further provides that 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. On conjoint reading of sub-section (2) and (3) of Section 25 it clear that once meeting is called under sub-Section (2) of Section 25 for electing office bearers of the society by the Registrar after satisfying himself that election of the office-bearers of a society has not been held within the time specified in the rules of that society then, no other meeting of the general body of such society for electing such office-bearer is permissible. Merely because tenure of the Managing Committee has come to end same would not be ipso facto have the effect of taking away the right of outgoing Managing Committee of the society hold the elections.

This Court in the case of Committee of Management Management AK College Versus State of UP and others reported in 2000(1) ESC 870 has taken the view that term of a committee of management of a society starts from the date that it takes charge of the society. It does not become defunct after its term expires. It continues until the new committee of management takes over. Relevant paragraphs 32 & 52 are being extracted below:

"32. The term of the petitioner was 5 years. It began from 4.9.1994 and expired on 3.9.1999. This does not mean that after 3.9.1999 the petitioner has become defunct. The decisions cited by the contesting respondents (in footnote 8) to show that a committee of management cannot function after expiry of its period, are under the Intermediate Education Act. They turn upon the peculiar wordings of the scheme of administration that normally so provides. The scheme of administration under the Intermediate Education Act also provides for appointment of an administrator (Prabandh Sanchalak), one month after completion of the term of a committee of management. This does not mean that the committee of management governing a society or a degree college under different provisions will also become defunct or an administrator can be appointed.

52. The term of a committee of management of a society starts from the date that it takes charge of the society. It does not become defunct after its term expires. It continues until the new committee of management takes over. In the present case, the Committee of management (the petitioner) had taken charge of the AK Society on 4.9.94. Its term came to end on 3.9.1999 but it continues until new elections are held.

This Court in the case of Sita Ram Rai and others Vs. Additional Registrar, Firms, Societies and Chits, Gorakhpur and others reported in 2003 (5) AWC 4159 has taken the view that once election have been held even after expiry of term of Committee of Management then Assistant Registrar has got no authority to disapprove said election on the ground that election has been held after expiry of term. Said view is unsustainable as there is no provision under Section 25(2) of Societies Registration Act, 1860 to unsettled elections on said ground. Relevant paragraphs 12, 13 17, 18 & 19 are being quoted below:

" 12. Societies Registration Act, 1860 was enacted for registration of literary, scientific and charitable societies. Any seven or more persons associated for any literary, scientific or charitable purpose, or for any such purpose as described in Section 20 of the Act, may be subsribing their names to a memorandum of association and filing the same with the Registrar, Firms, form themselves into a Society under the Act, Section 4 provides for annual list of managing body to be filed to the Registrar. By U.P. Act No. 11 of 1984, a proviso has been added to Section 4(1), which provides that if the managing body is elected after the last submission of the list, the counter signatures of the old members shall, as far as possible, be obtained on the list, if the old office bearers do not countersign the list, the Registrar may, in his distinction issue a public notice or notice to such persons inviting objections within specific period and decide all objections received within the said period. The powers and duties of Registrar have been specified in various provisions of the Act. He can cancel registration under Section 12 D and apply for dissolution on any of the grounds mentioned in Clauses (a) to (e) of sub-section (1) of Section 13 A after giving show cause notice to the Society, and thereafter moving the Court under Section 13 B for making an order for dissolution of Society. He can call for information under Section 22 and investigate into the affairs of the Society under Section 24. Section 25 inserted by U.P. Act No. 13 of 1978, with effect from 27.02.1978, provides for disputes regarding election of office bearers. A reference can be made by Registrar or by at least one third of member of the Society registered in U.P. to the prescribed authority to hear and decide in a summary manner, any doubt or dispute in respect of the election or continuance in office of an office bearer of such authority, and may pass any such order in respect thereof as it deems fit. The prescribed authority can set aside the election of an office bearer, on the ground of corrupt practices, or on the ground that the nomination of any candidate has been improperly rejected or that the result of the election has been materially affected by improper acceptance of nomination or by improper reception, refusal or rejection of any vote or the reception of any void vote or by any non-compliance with the provisions of any rules of the Society. Sub-sections (2) and (3) of Section 25. provides as follows:

(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 the 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 ans such meeting shall be presided over and be conducted by the Registrar or by any officer authorized 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.

13. The object and purpose of Section 25 is to provide for forum to decide disputes regarding election of office-bearers of registered Societies. Sub-Section (2) of Section 25, quoted as above, comes into operation after the election is set aside, or an office bearers is held no longer entitled to continue in office. The satisfaction of the Registrar that any election of office bearers of Society has not been held within the time specified to the Rules of that Society is to be arrived in accordance with the provisions in Bye-laws of the Society, to which the members have subscribed. If there is no provision in the Bye-laws for holding the elections after the expiry of the tenure of the executive committee or office-bearers, the Registrar may intervene to fill in the gap and to provide for such any eventuality by calling the meeting of the general body of the Society for electing office-bearers. Where the election of the office-bearers of the Society has been set aside under sub-section (1) and the time limit of holding election has expired the Registrar may step in and provide for holding elections. However in cases where the Bye-laws of the Society do not provide for any such eventuality the Registrar does not get authority to call any meeting of the general body of the Society to elect executive committee or office-bearers and to preside over such meeting or to authorizes any officer in that behalf. The Rules of the Society have to take precedence, except where they are inconsistent of the provision of the Act. In Committee of Management, Adarsh Shiksha Niketan Renukoot, (supra) the Court interpreted para-8 of the Bye-law of the said Society which provided for a term of three years to the office-bearers from the date of election. They were entitled to function even after the expiry of three years till the election was held. The election was held on 08.07.1992 and that the next election took place after about five years. Another person namely, Dwarika also claimed election to have taken place on 13.12.1998 i.e. after six years. There were rival elections set up by the claimants upon which the Assistant Registrar exercised powers under Section 25 (2) of the Act and directed a fresh meeting of the General Body to be held. In Seva Samiti Allahabad (supra) there were rival parties claiming that they have held fresh elections after the term of three years had expired. In these circumstances in both the aforesaid cases Court held after the term had expired nobody could hold elections except the Registrar. In both these cases there was an element of dispute and that the rival committees claimed elections to be held after the term of outgoing Committee of Management had expired.

17. Sri Salil Kumar Rai is correct in his submission that the provisions of Section 25(2) were not attracted in the present case, and that the Registrar could not have assumed powers to direct fresh election to be held. He is also correct in submitting that outgoing executive committee had initiated the process of election before its term had expired. The District Magistrate, as an ex-officio President had no authority to decide the membership of respondent nos. 3 and 4 and to postpone elections on that account. The District Inspector of Schools initially failed to discharge his statutory obligations arising out of registered Bye-laws of Society to appoint an observer. The voters list was subsequently verified by the District Inspector of Schools and the elections dated 16.06.2002 were held under an observer appointed by District Inspector of Schools who submitted his report on the basis of which the signatures of petitioner no. 1 were approved.

18. 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 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.

19. In Committee of Management Bal Awadh Inter college, Lalitpur, Mau Vs. State of U.P. reported in 2002 (3) ESC 129 this Court held that the elections beyond the expiry of the tenure of the Committee of Management were valid on the ground that the election process was started well before the expiry of term and that there was no lack of bona fide in getting the election conducted in time. While reading to the aforesaid conclusion the Court relied upon the decision in Committee of Management Vs. Secretary, Arya Kanya Inter College, reported in 1998 (3) AWC 2166; 1999 (2)UPLBEC (summary of case) 77 and B.N.B Inter College Vs. Regional Deputy Director of Education 1996 (3) UPLBEC 154. In Committee of Management Mubarakpur Vs. Regional Deputy Director of Education (Second) Azamgarh, 1997 (2) AWC 1210; 1997 (1) UPLBEC 412 this Court has relied upon the decision in Committee of Management, Aley Ahmad Girls Inter College Vs. Deputy Director of Education, Civil Misc. Writ Petition No. 10869 of 1996, decided on 15.11.1996, in holding that outgoing Committee of Manage can be treated to be functional in law even after expiry of the period of tenure provided in Rule; given the dispute. And elections have been held complying with the conditions as provided in Bye law. Such a Committee of Management can be recognized for administrative purpose. In the present case though the term of the Committee of Management had expired, the office-bearers were entitled to continue until they were held in a meeting convened by them under observer appointment by District Inspector of Schools, who had delayed such appointment unreasonable and illegally for about four years. The list of members was verified by District Inspector of Schools and that no irregularity was found in the elections. The Assistant Registrar did not find any error, and any irregularity or illegality or lack bonafides in holding the elections except the fact that it was held after the expiry of the term of the executive committee. Under the Bye-law of the Society and under Section 25(2) he could not have proceeded to set aside the elections and to direct fresh elections to be held under the District Inspector of Schools as an Election Officer."

This Court in the case of Committee of Management of Pt. Deen Dayal Shiksha Samiti, Pipraich, Gorakhpur and another, Vs. Assistant Registrar, Firms, Societies and Chits Gorakhpur Region Gorakhpur and others reported in 2005 ALJ 20 has approved the view taken in the case of Sita Ram Rai and others Vs. Additional Registrar, Firms, Societies and Chits, Gorakhpur and others. Relevant paragraphs 4 and 6 are being quoted below:

4. 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 V. Additional Registrar First, Societies and Chits, Gorakhpur Division Gorakhpur reported in 2004 ESC (All) 1617 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 tenure of executive Committee, reasonable inferred from the Bye-laws that the Registrar can step in and provide for elections. He however, cannot be deiced on the validity of the members who are entitled to vote. The election dispute 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."

6. 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 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 16.07.2003 passed by the Assistant Registrar cannot be sustained."

On the touch stone of the provision quoted above and the dictum of this Court fact of the present are being adverted to.

In the present case undisputed position is that election of the Praband Karini Samittee was held on 27.10.2002 and the decision to hold the election was taken on 26.02.2007 and pursuant thereof election process commenced and during the continuance of the election process writ petition has been filed by the Aunrag Jain being Civil Misc. Writ Petition No. 30741 of 2007 and this Court on 12.07.2007 has already refused to interfere with the matter of holding of election and specifically mentioned that this Court would not interfere in the matter or restrain the society to hold elections on this ground and petitioner has been relegated to file Civil Suit. Election process was on Civil Suit was also filed wherein injunction was refused on 08.08.2007. Sub-Section (2) and (3) of Section 25 have been enacted in order to prevent the misuse of the office by office bearers of society so that they may not prolong their life but once election process was on then Deputy Registrar Firms, Societies and Chits had no authority in law to interfere midway in election process, proceeding to exercise authority under Section 25(2) of the Societies Registration Act, 1860. Authority under Section 25(2) of the Societies Registration Act, 1860 could have been exercised in case no steps whatsoever were being undertaken in the direction of holding the election of the Committee of Management of the Society but once election process was on and Deputy Registrar Firms, Societies and Chits has duly signed the said election process then there was no occasion for him to invoke and exercise authority under Section 25(2) of the Societies Registration Act 1860, seeing the object of the authority vested under Section 25 (2) of Societies Registration Act 1860, i.e. to ensure elections. Not only this even in respect of validity of the nomination the Deputy Registrar made mention which is in realm of the validity of election. Deputy Registrar could not have dealt with all these question. In the present case authority vested under Section 25(2) has been clearly misused as outgoing Committee of Management whose tenure had come to an end had already initiated election process and right to hold the election was there as elections are held by the Election Officer appointed by the Managing Committee and in the event of non-holding of elections, then by Election Officer nominated by General Body. Here name of Election Officer had been ratified by General Body also and as Deputy Registrar had not passed any order holding that term of the Committee of Management has already run out and he is convening meeting for holding of elections, as such in the present case order dated 18.08.2007 is totally without jurisdiction.

Consequently, order dated 18.08.2007 is hereby quashed. Let election proceeding be concluded from the stage it has been stayed and whosoever is aggrieved against the result of election has right to approach Prescribed Authority after mustering support of 1/4th members of General Body of the Society under Section 25(1) of the Societies Registration Act, 1860 and it would be open to the Deputy Registrar Firms, Societies and Chits also to refer the dispute if any regarding election under Section 25(1) of Societies Registration Act, 1860 but certainly action under Section 25(2) of the Societies Registration Act can not be subscribed.

For the reasons stated above, present writ petition is allowed.

30th August, 2007

Dhruv


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