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SANJAY KUMAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Sanjay Kumar v. State Of U.P. And Others - WRIT - C No. - 33261 of 2007 [2007] RD-AH 15572 (14 September 2007)

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 AT ALLAHABAD

A.F.R.

Court No. 33

Civil Misc. Writ Petition No. 33261 of 2006

Sri Babu Ram Shiksha Prasar Samiti (registered Society) Village Kabir

Pur Nagla Madiya, Post Gadhi

Bedula, District Etah and

another.

Versus

The Deputy Registrar Firm, Societies

and Chits Regional Office

Agra and another.

Hon'ble V.K. Shukla,J.

Smt. Ram Rati Yadav claiming herself to be as Manager of Sri Babu Ram Shiksha Prasar Samiti, has filed present writ petition questioning the validity of the decision dated 7.6.2006 taken by the Deputy Registrar Firm, Societies and Chits Regional Office, Agra according renewal of the registration of the society and accepting the list of the office bearers of the year 2006-2007.

Brief background of the case is that in the district of Etah there is society known as Sri Babu Purva Madhyamik Vidyalaya Samiti, which had been registered initially on 23.11.1977 as per the provision as contained under Societies Registration Act, 1860. Petitioners submit that last renewal of the society was done on 23.11.1990 by the Managing Committee, wherein one Sonpal Singh was elected as Manager and Netrapal Singh was elected as President and said renewal was for the period of five years starting with effect from 1990-1995. Petitioners have further stated that elections were held on 8.8.1993, wherein Netra Pal Singh was elected as President and Sonpal Singh was elected as Manager. It has been stated that there was no dispute in reference to the election of the Committee of Management and thereafter, fresh elections were held on 8.8.1999 wherein one Netrapal Singh was elected as President and one Sonpal Singh was elected as Manager for the tenure 1999-2002, as tenure of the Managing Committee of the society was three years. It has been stated that one Smt. Kamlesh Yadav was also elected as Deputy Manager in the election. Petitioner no. 2 claims her enrolment as member of General Body on 8.7.2000. Petitioner no.2 has contended that the said society was renamed as Babu Ram Shisha Prasar Samiti. Sonpal Singh expired on 10.3.2001. Petitioner No. 2 submits that thereafter Smt. Kamlesh Yadav was given charge till regular election of Manager. It has also been stated that there was theft in the institution and as such entire records were stolen for which first information report was lodged on 11.3.2002. Petitioner No.2 further claims that casual vacancy of Manager was filled on 25.3.2002, wherein she was elected as Manager. Petitioner No.2 submits that thereafter, regular elections were held on 8.8.2002 wherein she was elected as Manager, alongwith other office bearers and member. Petitioner has further contended that on 26.7.2004 application was moved for renewal of the registration of society along with election proceeding held in the year 1993,1996,1999 and 2002 along with income expenditure and other details and thereafter renewal was accorded on papers submitted by her on 2.8.2004. Petitioner has further submitted that fresh elections were held on 21.11.2005 wherein Netra Pal Singh was elected as President and Smt. Ram Rani Yadav, petitioner no.2 was elected as Manager. Application for renewal of registration alongwith the copy of the election proceeding was moved before the Deputy Registrar Firm, Societies and Chits on 25.11.2005. Petitioner has contended that her signatures were also attested and there are series of document to demonstrate, her recognition as Manager. Petitioner has contended that while matter of renewal was pending, another set of persons also came forward and they also claimed renewal of the registration of the society and papers so submitted by other group of the persons was accepted by the Deputy Registrar Firm, Societies and Chits by according renewal and accepting the list of the office bearers and member on 31.3.2006. Against the said order, petitioner filed Civil Misc. Writ Petition No. 23190 of 2006 and this court on 27.4.2006 allowed the aforementioned writ petition by quashing the impugned order and Deputy Registrar, Firms Societies and Chits was directed to pass fresh reasoned order after giving opportunity of hearing to the parties concerned. Petitioner no. 2 has contended that thereafter, she represented the matter on 8.5.2006 along with copy of the order dated 27.4.2006 for renewal of the society, and further for rejecting the claim of Kripal Singh, which has been moved vide application dated 22.11.2005. Petitioner has contended that each and every document filed by her would show the veracity of the proceedings. Thereafter, Deputy Registrar , Firms Societies and Chits has proceeded to pass order on the papers of the Kripal Singh by according renewal of the registration of the society and accepting the list office bearers and members, and qua the petitioner it has been held that she is not a valid member of the general body of the society. At this juncture present writ petition has been filed.

To this writ petition counter affidavit has been filed and therein it has been contended that entire claim of the petitioner is based on fraud and forgery. It has been contended that petitioner has never been enrolled as member of the society and she is rank trespasser and series of the receipt, issued in the year 2000,2001 and 2002 would fully demonstrate the said aspect of the matter. It has also been contended that at the point of time, when the matter has been heard, she has not submitted documents, which could substantiate and establish her claim and in this background decision, which has been taken, is correct decision. In respect of the election of the year 1999, it has been contended that Sonpal Singh was elected as Manager, Raghubir Singh was elected as President, Kripal Singh was elected as Assistant Manager, Netra Pal Singh had never elected as President and Smt. Kamlesh Yadav had never been elected as Assistant Manger. It has been contended that in the month of March, 2001, the Manager of the institution Sonpal Singh expired and then meeting was held on 25.3.2001 wherein Sri Kripal Singh was asked to function as Manager. It has been stated that Smt. Kamlesh Yadav has no concern whatsoever with the society and the institution and entire manipulation has been made after death of Sri Sonpal Singh. It has been also been contended that on 11.3.2002, no first information report whatsoever has been lodged and by setting up false and fictitious theory, petitioner succeeded in procuring renewal. In respect of attestation of signature, it has also been stated that documents, which have been filed, same are forged and fabricated documents. It has also been contended that Netra Pal Singh under whose president ship, petitioner is staking her claim, has given affidavit categorically mentioning therein that he has never been elected as President and he has never participated in any meting since 1993. It has also been stated that even account, which has been opened in the Bank , same has been cancelled. Entire claim of the petitioner has been contended to be in in genuine and fabricated claim and as such writ petition is liable to be dismissed,has been stated.

Counter affidavit has been filed on behalf of the State-Respondents also and therein it has been contended that proceeding in respect of election had been submitted by the petitioner, but to substantiate the said claim, no evidence had been adduced. It has also been contended that petitioner no.2 has never been valid member of the general body of the society. It has also been submitted that renewal was accorded, as it has been mentioned by the petitioner no.2 that all documents has been lost and as such said renewal has been accorded.

To both the counter affidavits, rejoinder affidavit have been filed and therein statement of facts mentioned in the counter affidavit has been disputed and that of writ petition has been reiterated.

After pleadings mentioned above, have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.,

Shri Shailendra, Advocate, learned counsel for the petitioner contended with vehemence that in the present case Deputy Registrar, Firms Societies and Chits has totally over stepped and transgressed its jurisdiction, inasmuch as, claim of the petitioner has been totally ignored by him and in the garb of the renewal proceedings, election dispute has been decided, which is not at all in his domain under Section 25(1) of the Societies Registration Act, 1860, as such writ petition is liable to be allowed and directives be issued to Deputy Registrar, Firms Societies and Chits to refer the dispute to the Prescribed Authority.

Slri M.D. Singh Shekhar, Senior Advocate, assisted by Sri R.P. Singh, Advocate appearing for contesting respondents countered the said submission by contending that entire claim of the petitioner is nothing but an out come of fraud and manipulation and Deputy Registrar, Firms Societies and Chits, only under Societies Registration Act, 1860 has been vested with the authority to accorded renewal of the society and while according renewal of the society , said authority is not obligated to refer in genuine dispute, and here from the fact of the present case as stated by petitioner, he is not even primary member of the general body of the society and even from the own documents of the petitioner, said fact is amply demonstrated, and once her claim is genuine claim, then writ jurisdiction being equitable jurisdiction, no interference is liable to be made and writ petition is liable to be dismissed.

In order to appreciate respective arguments advanced, Sections 1,2,3,3A,4 15,22,23 ,24 and 25 of Societies Registration Act, 1860 are being looked into:

1. Societies formed by Memorandum of Association and Registration:- Any seven or more persons associated for any literary, scientific, or charitable purpose or for any such purpose as is described in Section 20 of the this Act, may by subscribing their names to a Memorandum of Association, and filing the same with Registrar from themselves into society under this act.

2. Memorandum of Association. The memorandum of association shall contained the following things that is to say.

The names of the society.

The objects of the society.

The names, address and occupations of the Governor's council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted.

A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body shall be filed with memorandum of association.

3. Registration and fees:- (1) Upon such memorandum and certified copy being filled along with particulars of the address of the society's office which shall be its registered address, by the Secretary of society on behalf of the persons subscribing to the memorandum, the Registrar shall certify under his hand that the Society is registered under this Act. There shall be paid to the Registrar for every such registration a fee of one hundred fifty rupees or such smaller fee as the State Government may notify in respect of any class of societies.

Provided that the Registrar may, in his discretion issue public notice or issue notice to such persons as he things fit inviting objections if any, against the proposed registration and consider all objections that may be received by him before registering the society.

(2) Notwithstanding anything in sub-section (1), the Registrar shall refuse to register a society, if after giving in an opportunity of showing cause against such refusal, he is satisfied that

(a) the name of the society is identical with that of any other society previously registered under this Act;

(b) the name of the society sought to be registered uses any of the words, namely, ''Union', ''State', ''Land Mortgage', ''Land Development', Co-operative, Gandhi, ''Reserve Bank' or any words expressing or implying the sanction, approval or patronage of the Central or any State Government or any word which suggests or is calculated to suggest any connection with the local authority or any corporation or body constituted by or under any law for the time being in force, or is such, as is otherwise likely to deceive the public or the members of any other society previously registered under this Act.

(c) any one or more of the objects of the society sought to be registered is not an object mentioned in Sections 1 and 20, or

(d) its objects are contrary to any other law for the time being in force.

Provided that the State Government may in exceptional circumstances, for reasons to be recorded permit any society to use the word ''Union' or the word ''Gandhi' in its name, and thereupon, the use of that word in the name of the society shall not be a ground for refusal to register or to renew the certificate of registration of such society.

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

Provided that a certificate issued before the commencement of the Societies Registration (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 the difference of the fees specified under sub-section (3) and the fees already paid.

(2) A society registered under Section 3, whether before or after the 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 fee 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 a 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 ground mentioned in sub-section (2) of Section 3 exist 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 twenty five whichever is less if such application is filed within the period specified in sub-section (2).

(b) an additional fee of five rupees, 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 two rupees per month or part thereof, if such application is filed beyond one month of the expiratio9n 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 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 any other sufficient cause.

(5) A society which falls 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 fifty rupees.

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

4. Annual List of managing body to filled:- (1) Once in every year on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or; if the rules do not provide for an annual meeting, in the month of January, a list shall be filled with the Registrar, of the names, addresses and occupations of the Governor's council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.

Provided 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 discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period.

(2) Together with list mentioned in sub-section(1), there shall be sent to the Registrar a copy of the memorandum of association including any alteration, extension, or abridgement of purposes made under Section 12, and of the rules of the society corrected up to date and certified by not less than three of the members of the said governing body to be a correct copy and also a copy of the balance sheet for the preceding year of account.

15. Member defined (1) For the purposes of this Act a member of a society shall be a person, who having been admitted therein according to the rules and regulations thereof, and shall have paid subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulation.

(2) Every society shall maintain a register of members giving such particulars as may be prescribed.

22. Power of Registrar to call for Information:-(1) The Registrar may, by written order, require any society to furnish in writing such information or document within such time, being ordinarily not less than two weeks from the date of receipt of the order by the society, as he may specify in the order in connection with the affairs of the society or any documents filed by the society under this Act.

(2)On receipt by the society of an order under sub-section (1), it shall be the duty of the President, Secretary or any other person authorised in this behalf of furnish such information or document.

23. Audit:- (1) Without prejudice to the provisions of sub-section (2) of Section 4 or of Section 22, where the Registrar is of opinion that it is necessary or expedient so to do, he may, by written order require any society to furnish its accounts or copy of the statement of receipts and expenditure for any particular year duly audited by the Chartered Accountant.

Provided that the Registrar may, at the request of society permit it to have such accounts and statement by any other person approved by him.

(2) If the society fails to furnish the documents referred to in sub-section (1) within the period specified in the order or within such extended period as the Registrar may from time to time allow, the Registrar may cause the accounts of such society audited for the said year and may recover the cost of such audit from the society.

(3) It if society neglects or refuses to make its accounts or other documents available for audit under sub-section (2)k or in the opinion of the Registrar, otherwise fails to provide requite facilities to have the audit made, with due expedition, the registrar may proceed to take action under Section 24.

24. Investigation of affairs of a society:- (1)Where an information received under Section 22 or otherwise, or in circumstances referred to in sub-section (3) of Section 23, the Registrar is of opinion that there is apprehension that the affairs of a society registered under this Act are being so conducted as to defeat the objects of the society or that the society or its governing body or whatever name called, or any officer thereof in actual effective control of the society is guilty of mismanaging its affairs or of any breach of fiduciary or other like obligations, the Registrar may, either himself or by any person appointed by him in that behalf , inspect or investigate into the affairs of the society or inspect any institution managed by the society.

(2) It shall be the duty of every officer of the society when so required by the Registrar or other person appointed under sub-section (1) to produce any books of account and other records of or relating to the society which are in his custody and to give him all assistance in connection with such inspection or investigation

(3) The Registrar or other person appointed under sub-section (1) may call upon and examine on oath any officer, member or employee of the society in relation to the affairs of the society and it shall be the duty of every officer, member or employee, when call upon, to appear before him for such examination.

(3-A) The Registrar or other person appointed under sub-section (1) may, if in his opinion it is necessary for the purpose of inspection or investigation, seize any or all the records including accounts books of the society.

Provided that any person from whose custody such record are seized shall be entitled to make copies thereof or to take extracts there from in the presence of the person having the custody of such records."

(4) On the conclusion of the inspection or investigation, as the case may, the person, if any, appointed by the Registrar to inspect or investigate shall make a report to the Registrar on the result of his inspection or investigation.

(5 The Registrar may after such inspection or investigation, give such directions to the society or to its governing body or any officer thereof as he may thinks fit, for the Removal of any defects or irregularities with such time as may be specified and in the event of default in taking action according to such directions, the Registrar may proceed to take action under Section 12-D, as the case may be.

25. Disputes regarding election of office-bearers:- The prescribed authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, 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 society, and may pass such orders in respect thereof as it deems fit.

Provided that the election of an office bearer shall be set aside where the prescribed authority is satisfied.

(a)that any corrupt practice has been committed by such office bearer; or

(b)that the nomination of any candidate has been improperly rejected; or

(c)that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non compliance with the provisions of any rules of the society.

Explanation I-A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-

(i)induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat or injury, any elector, to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate the election.

(ii)With a view to inducing any elector to give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being , a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;

(iii)Abets (within the meaning of the Indian Penal Code) the doing of any of the Acts specified in Clauses (i) and (ii)

(iv) Induces or attempts to induce a candidate or elector to believe that he, or any person in who he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;

(v)Canvases on grounds of caste , community, sect or religion;

(vi)Commits such other practice as the State Government may prescribe to be a corrupt practice.

Explanation II- A 'promise of individual advantage or profit to a person' includes a promise for the benefit of the person himself, or of any one in whom he is interested

Explanation III. The State Government may prescribe the p0rocedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.

(2)Where by an order made under sub-section(1) , an election is set aside or an office-hearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office bearer of a society has not been held within the time specified in the rules of that society, he may call a 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.

(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 this section, the expression prescribed authority' means an office or Court authorized in this behalf by the State Government by notification published in the official Gazette"

Section 1 of the Societies Registration Act gives opportunity to seven or more persons associated for any literary scientific , or charitable purpose or for any such purposes as is described in Section 20 of this Act, by subscribing their names to a Memorandum of Association, and filing the same with Registrar from themselves into society under this Act. Section 2 envisages that Memorandum of Association should contain the name of the society and objects of the society. The names, address and occupations of the Governor's council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body has to be filed with memorandum of association. Section 3 deals with Registration and fees and authorities is Registrar to invite objections before according registration. Section 3-A deals with Renewal of certificate of registration. Sub-section (1) of Section 3-A provides that subject to the provisions of sub-section (2), a certificate of registration issued under Section 3 shall remain in force for a period of five years from the date of issue. Sub section (2) of Section 3-A provides that a society registered under Section 3, whether before or after the 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 fee specified in sub-section (3), be entitled to have its certificate of registration renewed for five years at a time. Sub-section (3) of Section 3-A deals the formalities which are to be fulfilled while moving application for renewal of the registration of the society. Sub Section (4) of Section 3-A obligates that 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 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 any other sufficient cause. Sub -Section (5) of Section 3-A provides that a society which falls 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 and thereafter Registrar has been vested with the authority to accord renewal for sufficient cause by allowing 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 fifty rupees. Sub -Section( 6) of Section 3-A deals that where a certificate of registration is renewed in accordance with sub-section (2) or sub-section (5) such renewal shall operate from the date of expiration of the period for which the certificate was operative. Section 4 obligates filing of annual list of the Managing body according to Rules of the society giving therein names, addresses and occupations of the Governor's council, directors, committee, or other governing body. Section 15 defines member for the purposes of Societies Registration Act which clearly provides that for the purposes of this Act a member of a society shall be a person, who having been admitted therein according to the rules and regulations thereof, and shall have paid subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulation. Sub Section (2) of Section 15 provides that every society shall maintain a register of members giving such particulars as may be prescribed. Section 16 deals with Governing body, as the Committee entrusted to run the affairs of the society section 22,23, and 24 deals with the wide authority of Registrar, to call for any information, to audit, to investigate the affairs of the society. Section 25 deals with the authority of Prescribed Authority, who on reference being made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, 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 society, and may pass such orders in respect thereof as it deems fit and prescribed authority has been vested with the authority to set-aside the said election on three points:-

(a) that any corrupt practice has been committed by such office bearer; or

(d)that the nomination of any candidate has been improperly rejected; or

(e)that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non compliance with the provisions of any rules of the society.

After said relevant provisions have been noted, the view point of this Court is also being looked into.

This Court in the case Committee Kisan Shiksha Sadan,Banksahi, District Basti and another Vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another reported in (1995) 2 UPLBEC 1242 has taken view that Registrar has authority to see that the person is member of the society or not and power of registration is exclusively vested with the Registrar . Relevant extract of the judgment is being quoted below:-

"This appeal arises out of the order, dated 14.2.1994 dismissing the writ petition No. Nil of 1004. The plea of the second appellant is that he was elected as the Manager of Kisan Shiksha Sadan, Bankasahi, District Basti (hereinafter referred to as the Shiksha Sadan) in January, 1992.This plea was denied by the second respondent herein stating that he was lawfully elected as the Manager of the Shiksha Sadan, and the second appellant was not even a member of the Shiksha Sadan, As the application filed by the second appellant herein was not considered by the Registrar of the societies, he filed a writ petition No. Nil of 1994 seeking a direction to the Registrar to decide his application. This writ petition was disposed of on 10th January, 1994 directing the Registrar to consider the plea of the second appellant herein and pass appropriate orders by giving reasons after considering the objections raised by the second appellant. Accordingly, the Registrar considered the plea of the second appellant in the light of the objections raised by him and passed the appropriate order dated 1.2.1994 holding that the second appellant herein was not even a member of the Shiksha Sadarn. Therefore, he refused to refer the dispute or doubt relating to the election of the Manager of the Shiksha Sadan. Aggrieved by that order, he filed writ petition No. Nill of 1994, the learned single judge dismissed the writ petitioner holding that the Registrar was competent to pass such an order. Aggrieved by that order, this appeal is preferred.

2. It is submitted by the learned counsel for the appellants that the Registrar has no power or jurisdiction to decide the question relating to the membership of the second appellant. When he raised a dispute about the election of the Manager of the Shiksha Sadan, he had no other alternative but to refer the doubt or dispute relating to the election of the Manager of the Shiksha Sadan to the Prescribed Authority under Section 25 of the Societies Registration Act, 1860 (in short' the Act'). On the other hand, it is submitted by the learned counsel appearing for the respondents that the Registrar may or not refer a dispute or doubt relating to the election of the Manager of a society to the Prescribed Authority for valid reasons and the Registrar is under no obligation to refer any dispute or doubt relating to the election ,without applying his mind, to the Prescribed Authority. It is further submitted that the Registrar is under an administrative obligation under Sect9ion 4 of the act to maintain a register of members of the managing body for his own administrative purpose. He is under an obligation to record the names of the elected members of the managing body and for that purpose he can be held an enquiry so as to find out who are the elected members of the managing body of a society. On the basis of such enquiry, if the Registrar comes to the conclusi0n that a person or persons are not even the members of the Society, he will be quite justified in not referring the doubt or dispute as to the election of members of the Managing body of a Society.

3. Having regard to the provisions of the Act, we see force in the submission of the learned counsel for the Respondents. Section 4 of the Act provides that a list of members of the managing body of a Society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the Society raise a doubt or dispute relating to the election of the members of managing body or Society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a Society to the Prescribed Authority. The registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision the Registrar will be quite justified to take into account all the relevant circumstances, as he has done in the present case. If an objection is raised about the membership of a person. In our view, it is the duty of the Registrar, for his own administrative purpose, to inquire into whether the person concerned is a member of the Society or not. If the Registrar comes to the conclusion that such a person is not a member of the Society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision. In the present case, the Registrar has applied his mind to the facts of the case to find out whether the second appellant herein or was not a member of the Shiksha Sadan. He found that he was not even a member of a a Society. It is a pure question of act. If any person feels aggrieved by such a decision, the proper course open to him is to approach the Civil Court and seek appropriate relief. The Registrar is bound by the decision of the Civil Court and his decision will be subject to the decree passed by the Civil Court.

4. The various decisions referred to by the learned Counsel for the appellants, namely, AIR 1989 236 and 1993 (2) UPLBEC page 890 do not have any application to the facts of this case.

5. In view of the aforesaid discussion, this appeal have no merits and is accordingly dismissed. There shall, however, be no order as to costs.

In respect of renewal of registration certificate, Division Bench in the case of Shiksha Parishad, Nagwa, and another Vs. Dy. Registrar, Firms, Societies and Chits, Faizabad and another reported in 1998(34) ALR 360 has taken the view that Registration/Renewal of certificate has to be done by the Registrar and Prescribed Authority has nothing to do with it. Relevant para nos. 3 and 4 are being extracted below:-

3. In Kanti Kumar Chaturvedi and others. Vs.District Inspector of schools, Kanpur and others, A Division Bench of this Court has clearly ruled that Section 25 of the Act would be attracted if" there is dispute between two rival parties each of whom is claiming to be validly elected body and that the section" is also attracted when a party challenges the legality or otherwise of the election of particular set of office bearers of the society on the grounds enumerated in Section 25 of the act." Division Bench has clearly ruled that Section 25 would be attracted to a dispute of the nature afore state " only when there is no dispute in respect of registration of society or its renewal of certificate of registration. " In Shambhu Kumar Tripathi Vs. Assistant Registrar, Firms, Societies and Chits, one of us (S.R. Singh, J) has held as under:-

"The submissions made by Sri Yogesh Agarwal have no merit also on the ground that the Assistant Registrar while exercising the power of renewal of the certificate of registration conferred upon him by Section 3A of the Act, could incidentally examine whether the list of members of the managing body submitted along with application for renewal of the certificate of registration as acquired by sub-section (4) was genu9ine or not. Exercise of such incidental or ancillary power may, in a given case, be considered necessary for effectuating jurisdiction vested in the Assistant Registrar under section 3A of the Act. It cannot be said that the question as to the genuineness of the list of members of the managing body submitted along with the application for renewal of the certificate of registration, has in the present case, actually gone into any dispute or controversy specially visualized by Section 25 of the Act. It is evident from Section 3A that renewal of the certificate of registration of a society is within the exclusive jurisdiction/domain of the Registrar which term includes Assistant Registrar Firms, Societies and Chits. The power to renew a certificate of registration being expressly and exclusively conferred upon the Registrar, the Registrar would be deemed to possess all incidental and ancillary powers as may be considered necessary for an effective exercise of the power under Section 3A of the Act."

4. In view of the above, we are of the considered view that so far as registration/renewal of certificate of registration of the society is concerned, it can be done only by the Registrar and the Prescribed Authority has nothing to do with it and, therefore, the order of the Deputy Registrar, Firms, Societies and Chits, in so far as it allowed the proceeding for renewal of the certificate of registration initiated at the behest of Nagendra Kumar Pathak to go on, warranted no interference and the learned Single Judge committed no illegality in maintaining that order. Sri R.C. Srivastava, learned counsel for the appellants too did not seriously dispute the continuance of the ongoing proceeding for renewal of the certificate of registration and his submission was confined only to this that the learned single judge was not justified in concluding that the dispute about Nagendra Kumar Pathak being a member of office bearer of the society, was not a dispute of the nature comprehended by Section 25 of the Act. Considering the submission we are of the considered view that the dispute, if any, in respect of Nagendra Kumar Pathak being a member or off9ice bearer of the society, if referred by at least one fourth of the members of the society to the Prescribed Authority, the matter shall hear and decide the same in a summary manner independently of the observations made in the impugned order and list of the managing body submitted under sub section (4) of Section 3A shall be modified/amended accordingly in term of the order passed by the Prescribed Authority without affecting the order of renewal of the certificate of registration of the society. In other words the renewal of the certificate of registration of the society would ensure to the benefit of the office bearers in whose favour the order is ultimately passed by the Prescribed authority. The special appeal is liable to be dismissed with this clarification.

5. In the result the Special Appeal fails and is dismissed with costs on parties subject to the observation/clarification afore stated.

This court in the case of Tej Singh Vidyayalya Auranh and another Vs. District Inspector of Schools, Mainpuri reported in 2000(2) ESC. 1207 (Alld.) has taken the view that Assistant Registrar Firms Societies and Chit has no authority to decide the dispute and as dispute was as of which two elections were valid. Relevant para no. 38 of the judgment is being extracted below:-

38. The dispute between the parties was which of two elections namely, one held on 3.12.1998 and the other held on 6.12.1998 is valid. This dispute was cognizable by the Prescribed Authority and the Assistant Registrar had no jurisdiction to decide it. The order of the assistant Registrar dated 30th October, 1999 is illegal and is quashed. The Assistant Registrar will, within two weeks from the date of service of certified copy of this order, refer the dispute to the Prescribed Authority. The Prescribed Authority will expeditiously, if possible within a period of six months, decide the dispute. The writ petition No. 50290 of 1999 (the third writ petition) is allowed"

This court in the case of Committee of Management Ashok Educational Society Gram Barpar Araipar and others Vs. Assistant Registrar, Firm, Societies and Chits, Gorakhpur and others reported in 2004(4)E.S.C. (Alld) has taken the view that where two parties were staking their claim in respect of elections, matter has to be referred to the Prescribed Authority. Relevant para No. 12,13,14 and 15 are being extracted below:-

12. We are, however, conscious of the fact that it is only when there is a genuine dispute regarding the elections that the matter has to be referred by the Assistant Registrar to the Prescribed Authority but when the dispute appears to be frivolous in nature, the provisions of Section 25 of the Act will not be applicable.

13. Examining the facts of this case, we find that the Assistant Registrar had already renewed the certificate of registration of the Society under Section 3-A of the Act on 2.9.2003. The dispute arose as to which of the lists supplied by the two parties should be accepted under Section 4 of the Act. For the said purpose both the parties claimed to have been elected on the basis of separate elections. According to the case set up by Sri Swami Nath Mani Tripathi, he continued to be the Manager of the Society on the basis of the elections held on 10.12.2000 whereas according to the case set up by Sri Gulab Dutt Tripathi, he was elected as Manager of the Society on the basis of the elections held on 26.10.2003. A perusal of the facts mentioned in the order dated 7.4.2004, however indicates that the case set up by Sri Gulab Dutt Tripathi on the basis of the elections held on 26.10.2003 cannot be termed as a frivolous dispute. Thus when there was a genuine dispute about the elections it was obligatory on the part of the Assistant Registrar to have referred the matter to the Prescribed Authority under Section 25 of the Act for deciding the dispute regarding the elections of office bearers. It is true that it is the power of the Assistant Registrar alone to accept the list of the Managing Committee under Section 4 of the Act but when, as stated above, there was a serious and genuine dispute about the elections, he should have waited for the decision of the Prescribed Authority under Section 25 of the Act and should not have decided the dispute about the elections himself.

14. The order dated 7.4.2004, therefore, deserves to be set aside and is, accordingly, set aside. The Assistant Registrar shall refer the matter to the Prescribed Authority and the list of the Managing Committee submitted under sub-section (4) of Section 3-A of the Act shall be modified/amended accordingly in terms of the order passed by the Prescribed Authority without affecting the order of renewal of the certificate of registration of the Society.

15. The Special Appeal is, accordingly, allowed and the judgment of the learned Judge is set aside. There shall be no order as to costs.

This court in the case of Committee of Management, Pt. Deen Dayal Shiksha Samiti and another Vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and others reported in 2004 (5) E.S.C. (Alld) 583 has taken view that Assistant Registrar has no authority to decide the election dispute.

On the basis of statutory provision, which covers the field and the view point of this Court. The inevitable conclusion is, that whenever issue is raised before Registrar/Assistant Registrar/Deputy Registrar, that an incumbent is valid member or not within the scope and ambit of Section 15 of Societies Registration Act, 1860, the said question can be very looked into and decided by Registrar/Assistant Registrar/ Deputy Registrar, as the case may be, in view of wide amplitude of authority vested under Section 22,23,24 of Societies Registration Act, 1860. Registration and renewal of registration of society is the exclusive domain of Registrar/Assistant Registrar/Deputy Registrar as the case may be, under Section 3 and 3-A of Societies Registration Act, 1860. Authority to accept, annual list of Managing Body, is also exclusive domain of Registrar/Assistant Registrar/Deputy Registrar as the case may be. While proceeding to exercise authority vested under section 3-A or 4 of Societies Registration Act 1860, in case election dispute or dispute in respect of continuance of office bearers is raised, then Registrar/Assistant Registrar/Deputy Registrar, may in his /her discretion, refer the dispute to the Prescribed Authority, if he/she is satisfied that bona fide, genuine dispute has arisen, in respect of election or continuance of office bearers and in case dispute totally lacks bonafidies and is in genuine dispute, then reference is not at all required, and there is no impediment in the exercise of authority vested under Section 3A and 4 of Societies Registration Act 1860. This action of Registrar/Assistant Registrar/Deputy Registrar, can always be tested on the parameters of judicial review. Apart from this, the group of persons on list being accepted under Section 4 are not remediless, as they can always assail the validity of the said list, after mustering support of one fourth members of society, before the Prescribed Authority. Prescribed Authority gets jurisdiction to decide dispute in respect of election or continuance of office bearers, either on reference or on being moved by one fourth members of the General Body. In entertaining dispute, on behalf of one fourth member of the general body of the society, Prescribed Authority, must satisfy himself that dispute has been raised by one fourth members of the General Body of society, who are members in term of Section 15 of Societies Registration Act 1860, and once satisfaction is recorded on this score, then dispute can be adjudicated in summary manner, and in the event of negative finding being there, the Prescribed Authority will have no jurisdiction. The parties are thereafter free to approach Civil Court.

Serious dispute has been raised as to whether petitioner no.2 is member of the general body of the society or not. Entire capital, which has been sought to be made by the petitioner no.2, is qua the papers submitted by her for renewal of the society and on the said papers so submitted, renewal had been accorded on 2.8.2004 and as same was not challenged, as such she has to be accepted as member of the general body of the society and her claim could not have been ignored by any means. This is undisputed fact that petitioner no.2 had obtained renewal of the registration of the society by contending that original papers had been lost for which first information report has been lodged and as such renewal be accorded. Said fact was factually incorrect on the face of it, inasmuch as subsequent to the same, original paper had been produced by other side namely Kripal Singh and categorical statement of fact was mentioned that claim of the petitioner is totally false and fictitious and she is not even primary member of the general body of the society. Deputy Registrar, Firms Societies and Chit has made categorical mention in his order dated 7.6.2006 mentioning therein that petitioner has not produced any documents to show and substantiate as to how she has been enrolled as valid member of the society. Documents had been filed alongwith representation, by the petitioner no.2 before the Deputy Registrar, Firms Societies and Chit on 8.5.2006 which are ten in number. In representation dated 8.5.2006, it was mentioned, that in respect of enrollment of members , there is no specific provision contained qua an particular office bearer. Before this court in order to show and substantiate that petitioner has been validly enrolled as member of the general body of the society, she had filed documentary evidence in the shape of membership form and in the shape of receipt , which is annexed at page no. 48 and 49 of the writ petition respectively. Undisputed position is that petitioner no.2 claims that she has been inducted as member by Deputy Manager Smt. Kamelsh yadav, who has issued receipt in her favour for a sum of Rs. 101/- wherein Rs. 1/- had been shown as entry fee and Rs. 100/- shown towards membership fee, total Rs. 101/- and her nature of membership has been shown to be ordinary member.

Under bye-laws of the society, right to issue receipt has been vested with the Manager. Admittedly Sonpal Singh, who was Manager, at no point of time has given any receipt in favour of the petitioner no.2 during his life time. Receipt has been issued by Smt. Kamlesh Yadav, and this is not at all case of petitioner that at any point of time Sonpal Singh ever authorized Smt. Kamlesh yadav to issue any receipt whatsoever. In the representation dated 8.5.2006 categorical stand of the petitioner is that as per bye laws of the society, no particular, office bearer has been authorized in reference of enrollment of member as such petitioner no.2 has taken receipt from Smt. Kamlesh Yadav. In this background precise case of the petitioner has been that there is no provision of membership being taken qua any, particular office bearer and as per her each and every office bearer and member was entitled to accept the membership. Such plea of petitioner is totally negated from the provisions of the by-laws of the society, as function of each and every functionary has been clearly defined and it is Manager alone entitled to collect money and issue receipt. Petitioner no.2 has not given any convincing reason as to why receipt was not issued under the signature of Manager at that relevant point of time. Serious dispute is also there, in respect of authority of Smt. Kamelesh Yadav as Assistant Manger. Coupled with this, from the own documents of the petitioner no.2, it is amply demonstrated before this court that her claim is totally fictitious and is in utter contravention of the provision of bye laws of the society. As per the petitioner, she has deposited Rs. 101/- as membership fee. As per bye -laws of the society, Class of member has been described and prescribed fee qua each category of member has also been prescribed as follows:-

Sl. No.

Class of Members

Prescribed fee for membership in the bye-laws

1

Sahayak Sadasya

Rs. 5/- to Rs. 15/- per annum

2

Varshik Sadasya

Rs. 51/- per annum.

3

Vishesh Sadasya

Rs. 151/- for five years.

4

Aajeevan Sadasya

Rs.500/-

5

Paramparagat Sadasya

Rs. 1000/-

6

Sanrakshak Sadasya

Rs.1200/- or more than that

No where in the bye law of the society, fee of Rs. 101/- has been provided for any class of membership. Petitioner no.2 has claimed herself as ordinary member. Out of six class of members provided for in the bye-laws, she does not fall in any one of the categories. Confronted with the said situation Sri Shailendra, Advocate contended that it may be case of typing mistake. This is not at all case of typing mistake, as Xerox copy of the bye-laws , have been appended with writ petition, rather this is glaring case wherein membership has been tried to be manipulated. Petitioner No.2 can never be accepted as valid member in consonance with the provision as contained under bye law of the society and cannot be accepted as member within the scope and ambit of Section 15 of the Societies Registration Act, 1860. Deputy Registrar, Firms, Society and Chit has given categorical finding of fact that petitioner no.2 has failed to show and substantiate this fact that she is member of the general body of the society. Once petitioner no.2 has failed to show and substantiate that she is valid member of the society before the Deputy Registrar, Firms Societies and Chit and even before this court, then qua the society in question she is rank outsider and trespasser. Claim set up by the petitioner no.2 is on the face of it fake and ingenuine dispute, as such said claim as set up can not be directed to be entertained by the Deputy Registrar, Firms, Society and Chit and Deputy Registrar, Firms, Society and Chit of the society, who has been vested with the authority of renewal of the registration of the society and accept alongwith same list of the office bearers, in the present case has rightly not referred ingenuine dispute, and has rightly exercised authority vested in him. Merely because in the past petitioner has succeeded in obtaining renewal by furnishing false statement of fact that original record has been lost, then when on subsequent occasion other group of persons produced original document, then earlier renewal obtained, on incorrect statement of fact is of no consequence, specially when petitioner no.2 is not even a primary member of the general body of the society.

Consequently, writ petition is dismissed. Interim order stands discharged.

No order as to cost.

Dt. 14.9.2007

T.S.


Copyright

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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