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THE MAHARAJGANJ EDUCATIONAL SOCEITY THRU' ITS SECRY. & ANR. versus THE ASSTT. REGISTRAR, FIRMS, SOCIETIES NAD CHITS AND ANOTHER

High Court of Judicature at Allahabad

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The Maharajganj Educational Soceity Thru' Its Secry. & Anr. v. The Asstt. Registrar, Firms, Societies Nad Chits And Another - WRIT - C No. - 5529 of 2007 [2007] RD-AH 16260 (3 October 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

Reserved on 26.09.2007

Delivered on 03.10.2007

Civil Misc. Writ Petition No. 5529 of 2007

The Maharajganj Educational Society

District Maharajganj and another

Versus

The Assistant Registrar,

Firms Societies and Chits & others

Hon'ble V.K. Shukla,J.

Gyanendra Nath Dwivedi claiming himself to be the Secretary of the Maharajganj Education Society, District Maharajganj has filed present writ petition questioning the validity of the decision dated 06.01.2007 passed Assistant Registrar Firms Societies and Chits, Gorakhpur accepting the list of office bearers and members submitted by Ram Narayan Prasad, respondent no. 2 in exercise of its authority vested under Section 4 of the Societies Registration Act 1860. Maharajganj Education Society, District Maharajganj is registered Society under the provisions of the Societies Registration Act, 1860. Said society has established an institution known as Maharajganj Intermediate College, District Maharajganj and affairs of the same has to be run and managed as per the provisions of Scheme of Administration framed in exercise of authority vested under Section 16-A of U.P. Act No. II of 1921. Said Society has its own registered bye laws and and office bearers and members are to be elected as per the provisions as contained under aforesaid registered bye laws of the society. In respect of validity of the election of the Managing Committee of the Society two respective parallel claims came forward; one on behalf of Ram Narayan Prasad, respondent no. 2 and other on behalf of Gyanendra Nath Dwivedi. Said dispute in question was referred to the Prescribed Authority i.e. Sub-Divisional Magistrate, Sadar, District Maharajganj and said dispute was decided on 15.02.2001 wherein the Prescribed Authority came to the conclusion that election of the Managing Committee wherein Ram Narayan Prasad, respondent no. 2 has been elected is validly constituted Managing Committee and claim of Gyanendra Nath Dwivedi was uncalled for. Against said decision of the Prescribed Authority, Civil Misc. Writ Petition No. 10032 of 2001 had been filed by Gyanendra Nath Dwivedi. On presentation of aforesaid writ petition interim order was accorded and thereafter on 28.01.2003, said writ petition was dismissed as infructuous and interim order was also discharged. Papers under Section 4 of the Societies Registration Act 1860 were submitted by Ram Narayan Prasad and said list of office bearers and members was accepted by the Assistant Registrar Firms Societies and Chits alongwith renewal on 03.06.2003. Civil Misc. Writ Petition No. 25976 of 2003 had been filed by Gyanendra Nath Dwivedi questioning the validity to the decision taken on 03.06.2003. Thereafter on 17.10.2003, Assistant Registrar had proceeded to register, list of office bearers and members, submitted by Gyanendra Nath Dwivedi against which Civil Misc. Writ Petition No. 48869 of 2003 has been filed. This Court took up both the writ petitions and issued directions to the effect that while considering the question of registration of the list of office bearers and members provisions of Section 4 of the Societies Registration Act 1860 be kept in mind. Relevant extract of the order dated 09.11.2004 is being quoted below:

"As already noticed hereinabove, the Assistant Registrar is required to register the list of office bearers after having regard to provisions of the registered byelaws and after being satisfied that the newly elected office bearers have been elected in accordance with the approved scheme of administration or the term of the earlier elected office bearers is still continuing. From the impugned order passed by the Assistant Registrar, it is apparently clear that it contains absolutely no reasons for registering the list of the office bearers as directed vide order dated 17.10.2003.

The order passed by the Assistant Registrar, registering the list of the office bearers of the Committee of Management of Maharajganj Inter College, Maharajganj dated 12th March 2003 is wholly without jurisdiction, inasmuch as, he has no authority of law to register the list of office bearers of the Committee of Management of an Intermediate College, elections whereof are to take place in accordance with the approved Scheme of Administration and the competence to recognize the said elections of the Committee of Management is with the Regional Level Committee constituted under the Government Order dated 19th December, 2000.

In view of the aforesaid, the orders passed by the Assistant Registrar Firms Societies and Chits dated 12.03.2003 and 17.10.2003 are legally unsustainable in the eyes of law and are hereby quashed. This Court has not adjudicated upon the merit of the rival contentions raised on behalf of the parties, inasmuch as it is necessary that the claim set up by the contesting respondents for registration of their list of office bearers be adjudicated upon by the competent authority under the Societies Registration Act, first.

In such circumstance, both the aforesaid writ petitions are allowed. It is further directed that the Assistant Registrar shall act strictly in accordance with Section 4 of the Societies Registration Act and shall register the list of Office bearers after affording opportunity of hearing to the parties concerned."

Pursuant to the order passed by this Court the Assistant Registrar Firms Societies and Chits, Gorakhpur has proceeded with the matter and thereafter accepted the claim of Ram Narayan Prasad against which present writ petition has been filed.

Counter affidavit has been filed and therein it has been contended that Gyanendra Nath Dwivedi is even not primary member of the General Body of the Society and once he has lost the proceedings under Section 25(1) of the Societies Registration Act 1860, which has attained finality then by no stretch of imagination any interference is required to be made with the impugned decision in question by this Court.

Rejoinder affidavit has been filed to the said counter affidavit rebutting the statement of fact mentioned in the counter affidavit and averments 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.

Sri Anil Bhushan, Advocate, learned counsel for the petitioner contended with vehemence that in the present case Assistant Registrar Firms Societies and Chits has totally misdirected himself as earlier directives issued by this Court has been completely ignored and on totally unwarranted consideration dispute in question has been decided, as such impugned order in question is liable to be quashed and writ petition deserves to be allowed.

Sri S.C. Dwivedi, Advocate, appearing for contesting respondent no. 2, Ram Narayan Prasad, contended with vehemence that rightful decision has been taken and no interference is required by this Court specially in the background when finding of fact has been returned that petitioner no. 2 is not even primary member of the General Body of the Society in the past, and coupled with this entire claim of Gyanendra Nath Dwivedi is amply manipulated as such writ petition be dismissed. Sri Ravi Ranjan learned Standing counsel adopted the arguments of Sri S.C. Dwivedi Advocate.

After respective arguments have been advanced, factual position which is emerging is to the effect that this Court on 09.11.2004 had categorically mentioned that Assistant Registrar Firms Societies and Chits is required to register the list of office bearers and members having regard to the provisions of registered bye laws of the society and after satisfying that new office bearers and members has been elected in accordance with the approved bye laws of the society and Assistant Registrar Firms Societies and Chits was further directed to act strictly in accordance with the provisions as contained under Section 4 of the Societies Registration Act 1860.

On the touchstone of the earlier directives issued by this Court, the background of the case, and the provisions of Section 4 of the Societies Registration Act 1860 now the impugned order in question is being adverted to.

Here Gyanendra Nath Dwivedi had earlier contested the matter before the Prescribed Authority and the Prescribed Authority while passing order dated 15.02.2001 had framed two issues; first issue which was raised as to whether members are valid or invalid; second issue raised was as to whether proceedings of election which has been adhered to is valid proceedings or in valid proceedings. Categorical mention was made that member ship dispute will be decided by the Civil Court and it was also mentioned at the said point of time when these incumbent were coopted they were minor. Thus Prescribed Authority had given finding to the effect that at the point of time when these two incumbents namely Gyanendra Nath Dwivedi and Prem Shanker Mishra who claim themselves to have been coopted as member they were minor. The dispute in respect of election may be, due to passage of time has been rendered infructuous but the fact as to whether Gyanendra Nath Dwivedi is member of the Society or not as claimed by him by way of co-option is essentially question of fact which has to be adjudicated by Civil Court as observed by the Prescribed Authority. Prescribed Authority though has mentioned that dispute of member ship has to be adjudicated by the Civil Court but while adjudicating dispute has proceeded to mention that Gyanendra Nath Dwivedi and other incumbent both were minor when they claim themselves to be co-opted and writ petition which has been filed has been dismissed as infructuous then by no stretch of imagination Sri Gyanendra Nath Dwivedi can be accepted as member of the General Body.

This Court in the case of Shri Arya Hitkarini Maha Parishad, Lahurabir Varanasi Vs. Assistant Registrar in Civil Misc. Writ Petition No. 38238 of 2004 wherein writ petition had been dismissed as infructuous took the view that merely because writ petition has been rendered as infructuous that will ipso facto not wipe out the effect of the order, which was subject matter of challenge in the said writ petition, and the order of Prescribed Authority shall stand revived and cannot be permitted to be challenged collaterally.

Record in question, which has been noted in the impugned order also shows that at all point of time renewal proceedings were undertaken on the papers of Budhinman Prasad on 01.01.1980, 10.05.1982; 31.01.1984; 03.02.1987; 09.02.1993 and 14.05.1996 respectively for different periods. Gyanendra Nath Dwivedi no where has been in picture. For the first time he got file inspected on 30.11.1998 and thereafter submitted his separate list of office bearers and members claiming themselves to have been elected on 18.10.1998, whereas the group which at all point of time had applied for renewal proceedings and got society in question renewal submitted elections dated 25.12.1998. Dispute was referred to Prescribed Authority on 17.05.1999, and same has been answered by Prescribed Authority on 15.02.2001 in favour of group headed by Ram Narain Prasad and Budhiman Prasad. Thereafter said order of Prescribed Authority has been questioned in writ petition, which has eventually been dismissed as infructuous, on the own statement of counsel for the Gyanendra Nath Dwivedi. Thereafter again endeavour had been made in the same direction, by both the sides and this Court had ultimately remitted the matter back, pursuant to which fresh order has been passed.

This time categorical finding of fact has been returned that right from beginning renewal has been done on the papers submitted by Budhiman Prasad, and qua sixth renewal proceedings undertaken on 10.10.1995 again papers were submitted by Budhiman Prasad as Secretary with Ram Prasad President. In this background categorical mention has been made that as per the provisions contained under Clause 20 (1) (a) (b) and clause 20 (iii) (b) of the bye-laws of Society the President and Secretary had the authority to convene the meeting and undertake the process. Qua group headed by Gyanendra Nath Dwivedi and Pradeep Kumar, categorical finding of fact has been returned giving reasons, that they were not entitled to convene meeting and undertake the process. For arriving at such conclusion aid has also been taken of the order dated 15.02.2005. Categorical mention has been made that Pradeep Kumar has failed to substantiate himself as Trustee. Said finding cannot be said to be arbitrary, unreasonable or perverse, as nothing contrary has been brought on record, which could satisfy this Court that primafacie there is some semblance of truthfulness in the claim of petitioners. Renewal and registration of list of office bearers and members, in the sole domain of Assistant Registrar, and here reasons have been indicated for titling the scale in favour of group headed by respondents.

Even before this Court categorical mention has been made in the counter affidavit filed on behalf of respondent no. 2 in paragraph 23, 31, 45, 46 and 82 that Gyanendra Nath Dwivedi is not even member of the General Body of the Society his entire claim is forged and on the date when he claims to have been co-opted on 15.08.1982, he was minor and while giving reply to these paragraph there is no specific denial rather vague and evasive denial has been given and in fact non-reply of paragraph 31 clearly substantiates that Gyanendra Nath Dwivedi was minor and had not even competed eighteen years of age and similar has been status of Prem Shanker Mishra also. Qua resolution dated 15.08.1982 which has been termed to be forged by the contesting respondent. There is one more important aspect of the matter which primafacie belies the claim of Gyanendra Nath Dwivedi and does not help Gyanendra Nath Dwivedi as resolution dated 15.08.1982 has been passed in meeting of Governing Council. Under the bye laws of the Society the trustees of the Society has to be on the outer side comprising 13 members. Original Trustees have the authority to co-opt and on being co-opted, such trustees would be at par with original trustees. For this purpose, President of Governing Council is authorized to call and convene meeting by giving 14 days notice to the Trustees. Thus scheme is clear in respect of co-option of trustee member. Governing Council has no authority to co-opt member Trustee and primafacie minutes of meeting dated 15.08.1982 do not indicate that same is meeting of Trustees to co-opt another Trustees. If the persons mentioned therein are all trustees then including Triloki Nath Dubey they are already thirteen then there cannot be any occasion to induct more trustees, as ceiling of thirteen trustees is there. Gyanendra Nath Dwivedi has claimed himself to have been coopted in place of Bhagwan Prasad whereas Prem Shanker Mishra claims to have been co-opted in place of Baba Raguhunath Dass. Their claim as mentioned above, is primafacie not at all in consonance with the bye laws of the Society.

Categorical finding has been returned that all point of time renewal proceedings were undertaken on papers of group represented by Ravi Narain Prasad and Budhiman Prasad in this background list of office bearers and members has been registered under Section 4 of the Societies Registration Act. As such order passed by Assistant Registrar Firms Societies and Chits in the present case is in consonance with the provision as contained under Section 4 of the Societies Registration Act, 1860 for the simple reason that as far as Gyanendra Nath Dwivedi is concerned he had no right to convene the meeting to hold the election as at all point of time on the papers submitted by group of Ram Narayan Prasad has been accepted and even renewal proceedings has been done and list of office bearers and members has been accepted. Reasons which has been given by the Assistant Registrar Firms Societies and Chits are valid reasons specially when seeing the background of the serious dispute of member ship of Gyanendra Nath Dwivedi.

Consequently present writ petition is dismissed. Remedy of the petitioner lies in filing Civil Suit for declaration of his right of being Member of the Society.

Dated : 03th October, 2007

Dhruv


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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