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THE C/M. KASIMOOL OLOOM AND ANOTHER versus THE ASSTT. REGISTRAR, FIRMS, SOCIETIES & CHITS AND ANOTHER

High Court of Judicature at Allahabad

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The C/M. Kasimool Oloom And Another v. The Asstt. Registrar, Firms, Societies & Chits And Another - WRIT - C No. 3464 of 2004 [2005] RD-AH 7206 (8 December 2005)

 

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

                                                                                       Court No.38

Civil Misc. Writ Petition No. 3464 of 2004

The Committee of Management Kasimool Oloom and another

                                        Versus

The Assistant Registrar, Firms, Societies & Chits, Azamgarh & Anr.

Hon'ble Vineet Saran, J

The petitioner society was registered under the Societies Registration Act, 1860 (for short ''the Act'). On 3.9.2001 the registration of the society was renewed by the Assistant Registrar, Respondent no.1, for a period of five years, with effect from 28.4.2000. The said application for renewal had been made by the petitioner. Thereafter on some complaint which had been filed by the Respondent no.2, jointly along with certain other villagers, proceedings had been initiated for cancellation of the renewal granted in favour of the petitioner society. Thereafter the Assistant Registrar, after giving opportunity of hearing to the petitioners as well as the Respondent no.2, passed the order dated 31.12.2003, in which although it has been held that the renewal granted in favour of the petitioner society for a period of five years with effect from 28.4.2000, would be valid, but proceeded to decide the controversy with regard to the election of the Committee of Management and in that process held that the election said to have been held on 8.4.2001, on the basis of which the petitioner was claiming to be the Manager of the society, was not valid and further that the election held on 12.8.2003, in which the Respondent no.2 was elected as the Manager, was valid. Aggrieved by the said order, the petitioners have filed this writ petition praying for quashing of the order dated 31.12.2003 passed by Respondent no.1 and also that a direction be issued to the respondents not to interfere in the functioning of the Petitioner as Manager of the Society and the Madarsa, which is being run by the society.

I have heard Sri A.K.Gupta, learned counsel for the petitioners assisted by Sri Rajiv Chaddha as well as Sri H.S.N.Tripathi, learned counsel appearing for the Respondent no.2. Learned Standing counsel has also been heard on behalf of Respondent no.1. Counter and rejoinder affidavits have been exchanged between the contesting parties and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

The renewal of the society was undisputedly granted by the Assistant Registrar, Respondent no.1, on 3.9.2001 for a period of five years with effect from 28.4.2000. According to the Respondent no.2, an application was filed on 3.1.2003 to look into the affairs of the society, as no election of the Committee of Management had been held in the last ten years and that the management was mis-using the funds of the society and thus a prayer had been made that an authorized controller be appointed. Such application was addressed to the District Magistrate and forwarded to the Respondent no.1. Although copy of such application has not been filed either with the writ petition or along with the counter affidavit but the same was produced before me at the time of hearing. In the said application there is no such prayer for cancelling the renewal certificate granted in favour of the petitioner society. According to Sri Gupta, learned counsel for the petitioners, the Respondent no.1 could not have entertained such an application or have passed the impugned order when the order for renewal of registration of such society had already been passed, and in case if any question arose as to whether the renewal certificate had wrongly been granted, the matter should have been referred to the State Government under section 3-B of the Act. Sri Tripathi, learned counsel for the Respondent no.2, has however, submitted that the Assistant Registrar was empowered under section12-D of the Act to pass an order cancelling the certificate of renewal, if the same was found to have been obtained by mis-representation or fraud.

A perusal of the impugned order does not disclose as to under which provision of the Act, the Assistant Registrar has exercised the power by which, although he has refused to interfere with the order granting renewal, but has actually gone into the question regarding the election of the petitioner said to have been held on 8.4.2001, in which the petitioner claims that he was elected as the Manager for a period of three years. After holding that the said elections were not validly held, the Assistant Registrar has gone further in holding that the elections claimed by the Respondent no.2, to have been held on 12.8.2003, to be valid, in which Respondent no.2 is said to have been elected as the Manager for a period of three years. Such recognition of an election could not have been granted by the Assistant Registrar under any of the provisions of the Act. At best he could have only examined as to whether the application for renewal of the society was made by the proper person or not. The findings and the conclusion arrived at by the Respondent no.1 are self-contradictory. On the one hand, the clear finding is that no elections were actually held on 8.4.2001 in which the petitioner claims to have been elected as the Manager, and on the other hand the Assistant Registrar has refused to interfere with the order dated 3.9.2001 by which the renewal of the society had been certified for a period of five years. In case if at the time of renewal there was no validly elected Committee of Management, such renewal ought not to have been granted or if granted, the same should have been withdrawn by the Assistant Registrar, in case if he arrived at a finding that the same had been obtained by mis-representation or fraud. Since there was no mis-representation or fraud found to have been committed by any of the parties, the renewal certificate was rightly not cancelled, as the validity of an election, and the person claiming to have been elected on the basis of an election, which may or may not be valid, cannot be said to be a commission of fraud by such person who is making application for renewal of the registration of the society. In any case, the learned counsel for the parties have not placed any provision under the Act by which the Assistant Registrar could have given a finding and approval to an election, which is said to have been conducted more than two years after the issuance of the certificate. In such view of the matter, the Assistant Registrar could not have looked into the elections of a Committee of Management especially on an application filed after more than two years of the elections, said to have been held on 8.4.2001. He could only look into the question of grant or renewal of registration, and in the process, at best look into as to whether the person making such application was authorized to do so or not. Since the finding regarding the elections of 8.4.2001 and 12.8.2003 have been recorded by the Respondent no.1 in its order dated 31.12.2003, which were totally uncalled for and the said respondent had no occasion to examine the same under law, the order impugned in this writ petition is liable to be set aside.

However, as regards the second prayer, which is for a direction to the respondents not to interfere in the functioning of the petitioner as Manager of the society and the Madarsa, the same cannot be granted, in view of the fact that even if the election of the petitioner, said to have been held on 8.4.2001, was valid (regarding which this Court is not giving any finding of its own), then too, the period of three years after such election has already expired. Even otherwise, the registration of the society, which was for five years with effect from  28.4.2000, has also expired and nothing has been brought on record to show that fresh renewal has already been granted by the competent authority. As such it is left open to the parties to approach the concerned competent authority under law for getting their respective elections recognized, as the petitioners claim that fresh elections have already taken place in April, 2004 and the Respondent no.2 claims that his elections of 12.8.2003 were valid and he would be entitled to continue in power for three years from such date. The competent authority under law shall decide the said controversy, if so approached by the parties, and only the Committee of Management, which has been recognized by the competent authority, alone shall function and manage the affairs of the Society and the Madarsa.

Subject to the aforesaid observations/directions, this writ petition stands partly allowed. No order as to cost.

Dt/- December 8, 2005

dps


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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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