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SMT.SHAKUNTALA DWIVEDI versus MANAGER,P.D.K.G.I.C.& OTHERS

High Court of Judicature at Allahabad

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Smt.Shakuntala Dwivedi v. Manager,P.D.K.G.I.C.& Others - WRIT - A No. 17665 of 1998 [2007] RD-AH 3623 (1 March 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 OF ALLAHABAD

(Judgement reserved on 29.11.2006)

(Judgement delivered on 1.3.2007)

Civil Misc. Writ Petition No.17665 of 1988

Sadanand Shiksha Samiti, Sadanand Mahavidyalaya Chheolaha, Fatehpur and another

Vs.

Commissioner, Allahabad division, Allahabad and another

Hon.S.U.Khan,J.

Heard learned counsel for the parties.

The dispute in this writ petition is in between new and old societies.  Petitioner is the new society and respondent no.3 is the old society i.e. Sadanand Shiksha Samiti (S.S.S. in short).  The old society was registered on 9.5.1973. By U.P. Act No.52 of 1975 effective from 10.10.1975,  section 3-A was inserted in the Societies Registration Act 1860.  Through the said Section provision for periodical renewal of registration of the Society after every 5 years was provided.  Under sub-section (5) of Section 3-A  of the Act it was provided that a society which failed to get its certificate of registration renewed within one year from the expiration of the period for which the certificate was operative shall become an un-registered society.  The registration of the old society was renewed on 16.12.1978 on the application filed by Rahas Bihari Tewari alleging himself to the the President of the old society.  It is admitted to the petitioners that initially when society was registered there were only nine members who constituted the general body as well as executive body of the society and in the elections held on 3.10.1973 R.B. Tewari was elected as President.  While filing application for renewal of registration R.B. Tewari claimed that he was the President.  R.B. Tewari claimed that he was again elected as President in the elections held on 1.7.1978.  According to the petitioners, R.B.Tewari had been convicted in 1935 in Session Trial No.25 of 1935  for ten years rigorous imprisonment under Section 395/397 I.P.C. According to the further case of the petitioners in view of Section 16(A) added by U.P. Legislature in Societies Registration Act with effect from 10.10.1975 a person who has been convicted for any offence involving moral turpitude shall be disqualified for being chosen as, and for being, a member of the governing body or the president, secretary or any other office bearer of society.  According to the petitioners in view of his conviction, R.B.Tewari was expelled from the Presidentship and membership of the society in a meeting convened on 24.9.1978 by the Manager i.e. petitioner no.2 Har Prasad hence he was not authorised to apply for renewal of the certificate. Petitioners have also alleged that elections of the executive body of the society were held on 8.10.1978 in which Raghunandan Prasad was elected as President and petitioner no.2 Har Prasad was re-elected as Manager and thereafter on 2.11.1978 the office bearers decided to form a new society as registration of the old society had expired. Accordingly, application for formation of new Society by adding "Sadanand Mahavidlaya" to the name of the old society i.e. (S.S.S.) was filed.  The new society was registered on 6.11.1978.  

Learned counsel for the respondent has cited an authority of this court reported in Committee of Management vs. State 2006 (4) Allahabad Daily Judgment 187.  In para-9 of the said judgment it has been held that "effect of according renewal is that such renewal  shall operate from the date of expiration of period for which certificate  was operative meaning thereby that at no point of time society in question was unregistered.  Once this is the effect of removal, can the society with new registration owing its existence on account of non registration of  old society be permitted to stand."  Thereafter the answer of the question posed was given in negative.  

The bone of contention between the two societies is Sadanand Degree College which was established by the old society.

R.B. Tewari filed application for renewal of the registration of old society and renewal was granted on 16.12.1978 i.e. After one month and ten days of registration of the new society.  This naturally gave rise to the dispute between the two societies.  Petitioner filed application for cancellation of certificate of the old society under Section 12-D(1) of Societies Registration Act.  The old society also filed application for cancellation of registration of the new society under the same provision.  Some technical disputes were raised regarding the provision under which proceedings could be taken.  Ultimately Registrar, Firm Societies and Chits heard and decided the matter through order dated 22.3.1988, copy of which is Annexure-19 to the writ petition in favour the new society.  The Registrar held that R.B. Tewari had been removed from the post of President of the executive body of the society and primary membership of the society hence he could not apply for renewal.  Under Section 16-A of the Act the conviction on the ground of moral turpitude does not warrant removal from the membership of the society.  Even if it is assumed that R.B. Tewari had rightly been removed from the post of President no fault can be found with the renewal application filed by him.  Renewal is of the Society and not of any office bearer or member of executive body  of the society.  The Registrar went to the extent of suggesting that action should be taken under Section 27 of Societies Registration Act for punishing R.B. Tewari. The Registrar also decided the question of effective control and held that it was evident from the order of the Vice Chancellor of Kanpur University dated 5.6.1982 that Committee of Management headed by Har Prasad Manager was in effective control of the affairs of the College.  Question of effective control in the proceedings in question was wholly irrelevant.  Ultimately Registrar cancelled the registration of the old society granted on 16.12.1978.  Against order of Registrar dated 22.3.1988 appeal was filed under Section 12-D(2) of the Societies Registration Act being appeal no.5 of 1988.  Commissioner, Allahabad division Allahabad allowed the appeal on 16.8.1988, set aside the order of Registrar dated 22.3.1988 and cancelled the registration of the new society dated 6.11.1978. The said appellate order has been challenged through this writ petition.

Commissioner rightly observed that the Registrar in his order had mentioned that two societies of similar names had been registered and both were claiming to manage Sadanand Degree College.

The Commissioner further held that registration of the new society was granted on 6.11.1978 on a six line application dated 4.11.1978 given by Har Prasad claiming himsel to the Manager and absolutely no evidence was filed  alongwith the said application and there was no resolution of the Society also and in the said application there was no allegation that R.B.Tewari was a convict or had been removed.  Commissioner observed that at a very late stage it was asserted by Har Prasad that in the meeting of 24.9.1978 R.B.Tewari had been expelled on the ground of his conviction.  Commissioner further held that from perusal of records it was evident that in the meeting/election dated 1.7.1978 Har Prasad was not elected as Manager hence he got registered another society.  Commissioner also held that Registrar was also not right in holding that as R.B.Tewari was a convict hence society ceased to exist.  Commissioner also observed that Principal of the college had intimated the Registrar that Har Prasad had ceased to be Manager still no enquiry was held by Registrar and within two days of filing application new society was registered.

Under Section 16-A as added by Uttar Pradesh in the Societies Registration Act conviction on the basis of crime involving moral turpitude is a disqualification for being elected and for continuance as office bearers or member of governing body of the society.  If a person with the said disqualification is elected as Member or office bearer of executive body of the society then his election may be set aside.  However, for setting aside election of a member or office bearer of executive body of the society there are provisions under the Societies Registration Act.  The other members of the executive body cannot remove such office bearer or member.  Executive committee of society is not empowered to remove any of its office bearers or members  on the ground of illegality in the election which includes disqualification.  Moreover no notice was served upon  R.B.Tewari for the alleged meeting of 24.9.1978 in which allegedly his expulsion was to be considered.  Annexure-5 to the writ petition is copy of resolution dated 24.9.1978 which is stated to be a resolution of managing committee of the college.  Even if Committee of management of society and college is the same still participants of the meeting declared that they were holding meeting of committee of management of the college hence no resolution in respect of society could be passed.  There is no mention in the said resolution that specific notice was given to R.B.Tewari that his expulsion would be considered in the said meeting.  The only thing in this regard mentioned in the said resolution is that R.B.Tewari was not  convening the meeting.

If the old society had become unregistered then it could not hold meeting on 24.9.1978 when R.B.Tewari was allegedly expelled.

Accordingly, I do not find any error in the impugned order passed by the Commissioner.  The Commissioner rightly allowed the appeal.

  Before parting it may be mentioned that learned counsel for petitioner contended that in writ petition no.10104 of 1982 Society, Janta Junior High School vs. State of U.P. and others decided on 21.2.1995 it had been held that R.B.Tewari was convicted under Section 395 I.P.C. hence he was rightly removed from the society. The said writ petition was in respect of Junior High School and the society running the same and not the societies in question or the Sadanand Degree College.

Accordingly, there is no merit in the writ petition hence it is dismissed.

1.3.2007

RS/-


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

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