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Judgment
Amreshwar Pratap Sahi, J.—Heard Sri Yogish Kumar Saxena, learned counsel for the petitioners and Sri K.C. Shukla, learned counsel for the respondent No. 3, and the learned standing counsel for the respondent Nos. 1 and 2. The petitioners contend that the issue relating to membership was raised before the Deputy Registrar, Firms, Societies and Chits. Kanpur who by the impugned order has proceeded to introduce a new fact stated by the respondent No. 3 and without examining the said fact in correct perspective in accordance with the bye-laws which are applicable has wrongly arrived at the conclusion that the petitioner No. 2 has been expelled from the membership of the society.
The second contention of Sri Saxena is that the issue relating to the membership of Smt. Asha Pandey-respondent No. 3 was specifically raised but no finding worth the name based on any cogent material has been returned about the status of membership of Smt. Asha Pandey. He, therefore, contends that on both counts, the impugned order is vitiated.
The dispute appears to have arisen as the petitioner claims himself to be the President of the Society but one Mr. Ashok Kumar Pandey who came to be elected was favoured with an order by the Deputy Registrar on 28.2.2003. It is undisputed that Ashok Kumar Pandey continued as the Manager and he expired in 2011. The petitioner claims himself to be the undisputed President of the Society. He however submits that the induction of Asha Pandey as Manager is erroneous and the alleged expulsion of the petitioner is also not in accordance with the bye-laws of the society.
The Deputy Registrar has proceeded to believe the resolution dated 11th July, 2004 on the basis whereof the petitioner No. 2 is alleged to have been expelled. Sri Saxena submits that the bye-laws do not contain any such provision for expulsion, namely, that if a member is absent in three consecutive meetings he can be expelled from the General Body. Sri Saxena, therefore submits that if there is no such provision then the alleged resolution dated 11th July'' 2004 is absolutely against the bye laws and as a matter of fact this case was not even set up during the course of the hearing before the Deputy Registrar.
The second submission of the petitioner is that Asha Pandey was never inducted or enrolled as a member of the society. In the absence of any such material, there was no occasion to install her as a Manager of the society after the death of her husband Sri A.K. Pandey.
Sri Saxena contends that no finding worth the name has been recorded to support the same and in such circumstances, the order deserves to be set aside.
Sri Shukla, learned counsel for the respondent No. 3 contends that the matter be disposed of finally at this stage as he does not propose to file any counter-affidavit to the petition. Learned standing counsel for the respondent Nos. 1 and 2 has also adopted the same stand.
Sri Shukla contends that the petitioner never assailed his expulsion on 11th July, 2004 at any stage either before the Deputy Registrar or before any other forum. In such circumstances, he cannot be permitted to raise this issue and the Deputy Registrar has not committed any illegality in accepting the said resolution. On the second contention, Sri Shukla submits that no such issue was raised and the membership of the answering respondent was never doubted, hence, the impugned order is not vitiated.
In rejoinder Sri Saxena contends that so far as the expulsion issue is concerned this has been taken up by the Deputy Registrar without there being any objection raised by the respondent No. 3. In such circumstances, the petitioner was taken by surprise after receiving the said order and in fact also there is no provision in the bye-laws to expel the petitioner on the ground mentioned in the resolution or the order.
On the second issue relating to Smt. Asha Pandey, learned counsel submits that the membership list as submitted by Sri Ashok Kumar Pandey himself for the year 2008-11 does not contain the name of Asha Pandey and, therefore, this aspect has been completely ignored and the impugned order suffers from perversity on this ground as this issue was specifically pointed out before the Deputy Registrar but has not been considered.
Having heard learned counsel for the parties, learned counsel for the petitioner is correct in his submission that the issue relating to membership of the respondent No. 3 had been raised. The question of either accepting or rejecting the same was within the jurisdiction of the Deputy Registrar to decide keeping in view the provisions of Section 15 of the 1860 Act. The Deputy Registrar was, therefore, duty bound to record a finding on this issue which has not been done.
Apart from this the expulsion of the petitioner has also to be justified on the basis of the bye-laws and not on the basis of a mere allegation made by the respondent No. 3. There is no finding in the impugned order as to how the resolution dated 11th July, 2004 is supportable on any of the provisions contained in the bye-laws. In the absence of any finding the impugned order, in my opinion is vitiated on both counts and cannot be sustained. The order dated 16.5.2012 is quashed. The Deputy Registrar shall now proceed to pass a fresh order in accordance with law keeping in view the observations made hereinabove after giving an opportunity of hearing to the parties concerned within three months from the date of presentation of a certified copy of this order.
The writ petition is allowed.