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Judgment
Rajes Kumar, J.—By means of present writ petition, the petitioners have challenged the order dated 16.04.2004 (Annexure 5) to the writ petition passed by the Assistant. Registrar, Firms, Societies and Chits, Mau and claimed the following reliefs:
(i) to issue a writ, order or direction in the nature of certiorari quashing the order dated 16.4.2004 (Annexure 5) passed by the opposite party No. 2.
(ii) To issue a writ, order or direction in the nature of mandamus commanding to the opposite parties not to interfere in the functioning of the petitioners as office bearers of the Society and in managing the affairs of the Society as well as that of the School run by the Society except in accordance with law.
(iii) to issue any other writ, order or direction which this Hon''ble Court may deem fit and proper under the circumstances of the case to meet the ends of justice.
(iv) to award the cost of the petition in favour of the petitioners.
The brief facts of the case are as follows:
The dispute relates to the Committee of Management of a Society named as Harijan Gurukul. Dohri Ghat, district Mau. The said Society is registered under the provisions of the Societies Registration Act. 1860. The Society has its registered bye-laws. According to the memorandum of the Association as well as aim and object mentioned therein, the Society has established a Junior High School, which is known as Buniyadi Harijan Gurukul, Dohri Ghat, Mau. The Institution established by the Society is a recognized Junior High School which receives grants-in-aid from the State Government and teachers and employees of the School are paid their salaries out of the State fund. As per the provisions contained in the bye-laws of the Society terms of the office bearers of the Society is three years. As per the petitioners, after giving necessary information in the news paper to the Members of the General body, the meeting was held in the Campus of the School on 12.1.2004. Out of total 81 Members, 38 Members were present in the meeting, hence, corum was complete and as per the Schedule already published, proceedings of election of the office bearers and the Members of the Society were undertaken. All the Members and office bearers were elected unanimously. In the said election, the petitioner No. 2 was elected as a Manager. The Assistant Registrar, Firms, Societies and Chits was informed about the newly held election dated 12.1.2004 and all the documents pertaining to the election, were submitted to him. The petitioners claimed that the respondent No. 2 issued Notices to the earlier office bearers of the Society inviting objections. if any. Inspite of the Notices, No objection was raised by any of the office bearers. consequently, the list of office bearers and members elected in the election on 12.1.2004, was registered by the Assistant Registrar of the Societies on 11.3.2004. It appears that some of the earlier office bearers who could not be elected, filed a complaint before the respondent No. 2. On the said complaint, notices were issued to all concerned. It appears that the opposite parties disputed the election of the office bearers on the allegation that the election of the office bearers was held on 8.2.2004 and the petitioner No. 2 was not the member of General body and his whereabouts are not known to any body, hence, he could ot be elected as a Manager of the Society. It appears that on the date fixed, petitioners could not appear before the respondent No. 2, thus the respondent No. 2 passed an order dated 16.4.2004, whereby, recalled the registration of the list of the office bearers dated 11.3.2004 and accepted the opposite party Nos. 3 and 4 as validly elected constituted Committee and directed to register the list of the office bearers submitted by Sri Nath alleged Secretary of the Society.
Heard learned Counsel for the parties. Counter and Rejoinder-affidavits have been exchanged.
With the consent of both the parties, the present petition is being disposed of.
The main submission of learned Counsel for the petitioners is that the order dated 16.4.2004 passed by the respondent No. 2 recalling its earlier order dated 11.3.2004 and recognizing the Society and office bearers of the respondent Nos. 3 and 4 is absolutely illegal. He submitted that in case there being any dispute between the rival claimants, the said dispute, can be decided u/s 25 of the Societies Registration Act, 1960, in which, the Prescribed Authority has a jurisdiction to decide the claim of the rival dispute of the office bearers of the Society. Thus, the respondent No. 2 should have referred the matter to the Prescribed Authority for deciding the dispute and he himself has no jurisdiction to recall its own order and to recognize the Committee of the respondent Nos. 3 and 4.
Petitioner relied upon the Division Bench decision of this Court in the case of Committee of Management and Ors. v. Zila Basic Shiksha Adhikari and Ors. reported in 1987 UPLBEC 333 Abhay Grasth Gramin Jan Sangathan Kusmikhalan and Anr. v. Assistant Registrar Firms, Societies and Chits, Varanasi Region, Varanasi and Anr. reported in 1990 (1) UPLBEC 480 Committee of Management v. Secretary, Arya Kama Inter College, reported in 1999 (2) UPLBEC 77 Sitaram Rai and Ors. v. Additional Registrar, Firms, Societies and Chits, Gorakhpur Division, Gorakhpur, reported in 2003 (5) AWC 4159 and latest decision of this Court in the case of Mahipal Singh Vs. State of U.P.,
Learned Counsel for the respondent submitted that the petitioner has got his committee registered fraudulently. He submitted that in response to the notice by Sub Registrar, reply was filed on 01.03.2004 but the same has not been considered and the alleged committee of the petitioner has been approved on 11.03.2004. He submitted that the petitioner No. 2 was not even the Member of committee and was not known to the person. He submitted that Rama Kant Mishra, the earlier President of the society on whose presence, petitioner No. 2 claimed that the election look place, filed its affidavit stating therein that the election did not take place in his presence. He submitted that on the entire facts and circumstances. Assistant Registrar, Azamgarh has held that Rajesh Mishra and Shashi Kala Rai were never permanent or temporary member of the society and held that Rajesh Mishra and Shahi Kala Rai were not able to place any documents about their membership and merely on the paper proceeding took place and by filing wrong affidavit they get the committee registered for the year 2003-04. He submitted that u/s 4 of Societies Registration Act, 1860 (hereinafter referred to as "Act") Assistant Registrar has power to examine the membership, which has been done and. therefore, the claim of the petitioner that the dispute should not be adjudicated by the Assistant Registrar and should have been referred to the Prescribed Authority u/s 25 of the Act, is erroneous. He submitted that if the petitioner has any grievance against the order of the Assistant Registrar, Civil Proceeding would have been initiated and the present writ petition is not maintainable. In support of his contention he relied upon the Division Bench decision of this Court in the case of Committee of Management, Kisan Shiksha Sadan, Bahksahi, district Basti and Anr. v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. reported 1995 (2) UPLBEC 1242 Shiksha Prasar Samiti and Another Vs. Registrar, Societies, Chits and Firms and Others, Sri Ram Laxmi Narain Marvari Hindu Hospital and another Vs. Assistant Registrar, Firm''s, Societies and Chits and another,
Having heard learned Counsel for the parties and perused the order of the Assistant Registrar and the other documents on record.
In the case of Sri Ram Laxmi Narain Marvadi Hindu Hospital, Godaulia, Varanasi and Ors. v. Assistant Registrar, Firms, Societies and Ors (Supra) this Court has considered the scope of Section 4(1) and 25 of the Act and held as follows:
It is an indubitable fact that the scope and object of the provisions of Section 4(1) on the one hand and Section 25 on the other are quite separate and distinct. They are invocable and are operational in entirely varying facts and circumstances. The two provisions are mutually exclusive. There is no quarrel about the proposition of law that the Registrar, or for that matter, a Deputy or Assistant Registrar who has been invested with the power to pass orders u/s 4(1) has absolutely No authority to decide the dispute or doubt with regard to the elections of rival Committee of Management. Such type of dispute has, of necessity, to be decided by the Prescribed Authority u/s 25 of the Act. Power of the Registrar are limited and are exercisable within the ambit of Section 4(1) of the Act. Registrar cannot usurp the power of the Prescribed Authority u/s 25 of the Act in any circumstance. The above conclusion stands crystallized and the first oft quoted Division Bench of this Court on the point is Vijai Narain Singh v. Registrar, Chits, Funds, Firms and Societies, U.P., Lucknow and Ors. 1981 UPLBEC 308 in which it was held that the Registrar himself has no jurisdiction to hear and decide any doubt or dispute in respect of an election or continuance in offence of an office-bearer of a society. Therefore, any decision given by him in this regard will be wholly without jurisdiction. He is in law bound to refer any such dispute to the Prescribed Authority. In the subsequent case Maha Narayan Pandey and Ors. v. Registrar, Chits, Funds and Societies, U.P., Lucknow and Ors. 1984 ALJ 583 it was observed by another Division Bench of this Court that whenever it comes to the notice of the Registrar that a dispute which can be decided by the Prescribed Authority alone has arisen between the parties, he should refer the matter to the Prescribed Authority instead of assuming jurisdiction in himself to decide the said dispute. The legal position as abdumbrated in the aforesaid cases came to be reiterated in the subsequent decisions of this Court in Committee of Management and Ors. v. Zila Basic Siksha Adhikari and Ors. (1987) 1 UPLBEC 333; Purva Bazar Educational Society, Gorakhpur v. Assistant Registrar, Firms, Chits and Societies, Gorakhpur (1988) 1 UPLBEC 515 ; All India Council and Another Vs. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and Another, ; Muslim Welfare Society, Machlinagar v. Assistant Registrar, Firms, Societies and Chits 1991 AWC 1311; Khoproha Educational Society and Ors. v. Assistant Registrar, Firms, Societies and Chits 1993 (2) UPLBEC 890 and Company Management v. Assistant Registrar, Firms, Societies and Chits 1994 3 HVD (All.) 389. In short the gamut of all these rulings is that if there is any doubt or dispute about the Committee of Management or its office bearers, such a dispute cannot be resolved by the Registrar in exercise of his powers u/s 3(A) and Section 4 of the Act. The only course left open to him is to refer the dispute for consideration and determination by the Prescribed Authority.
In the case of Committee of Management and Ors. v. Zila Basic Shiksha Adhikari and Ors. (Supra) there was dispute between the parties about the committee of management. One election was held on 10.02.1986 and the other on 23.02.1986. Assistant Registrar upheld the election dated 19.02.1986 and left open to petitioner to invoke the jurisdiction of Prescribed Authority. Division Bench of this Court held that since there was a dispute between the two parties relating to the committee of management case was covered u/s 25 of the Act and the Assistant Registrar should have referred the matter to the Prescribed Authority u/s 25 of the Act.
In the case of Abhay Grasth Gramin Jan Sangathan Kusmikhalan and Anr. v. Assistant Registrar Firms, Societies and Chits, Varanasi Region, Varanasi and Anr. (Supra), the dispute arose between the two parties. Assistant Registrar has accepted the election valid of one group. Division Bench relying upon the earlier Division Bench of this Court in the case of All India Council v. Assistant Registrar Firms, Societies and Chits, Varanasi Region, Varanasi, reported in 1988 AWC 1154 held that Section 4 of the Societies Registration Act does not confer power on the Registrar to assume function of the Prescribed Authority which had been conferred on him in the event of a dispute of election arisen. Prescribed Authority alone has power to decide the controversy and the Registrar should have made a reference to him.
In the case of All India Council v. Assistant Registrar Firms, Societies and Chits, Varanasi Region, Varanasi, reported in 1988 AWC 1154 the Division Bench of this Court held as follows:
If a dispute is raised with regard to the election or continuance in office of an office bearer of a society registered in Uttar Pradesh, the same has to be decided only by the Prescribed Authority u/s 25(1) and not by the Registrar.
In the case of Mahipal Singh v. State of U.P. and Ors. (Supra), election for the purpose of electing the President of the society took place on 15.06.2005. In the result of election declared by the election officer, whereby it was recorded that Shri Mahipal Singh (petitioner) has secured 1342 votes while Shri Bhupendra Singh, respondent No. 4 has received only 1283 votes. Accordingly, Shri Mahipal Singh was declared elected as President. On 21.06.2005, the election officer on a complaint made by Shri Bhupendra Singh to the effect that he received 1282 votes while Shri Mahipal Singh received 1223 votes only, an order of recounting of votes was passed. The said order of the election officer was challenged in this Court. The said writ petition was dismissed by the Division Bench of this Court with liberty to the petitioner to file fresh petition. Even prior to the passing of the order by the Division Bench, election officer by means of the order dated 27.06.2005 has in fact effected the recounting and declared that Shri Bhupendra Singh has secured 1282 votes in recounting while Shri Mahipal Singh has secured only 1223 votes and accordingly, Shri Bhupendra Singh was declared as President. The relevant papers in respect of the aforesaid elections were transmitted to the office of the Assistant Registrar with the list of office bearers being registered u/s 4(1) of the Act. Shri Mahipal Singh filed the writ petition. This Court held as follows:
Admittedly the registered bye-laws of the society do not provide for any such power upon the Registrar, Firms, Societies and Chits, Lucknow. The registered bye-laws of the society are required to be read independently and the powers conferred on various persons mentioned in bye-laws of the society do not require any enlargement with reference to any powers which may be vested in the Registrar under the Societies Registration Act, 1860. The Registrar as such had no authority to recognize or register the list of elected office bearers or to interfere in the same in any manner.
In the aforesaid decision, it has been clearly held that when there is dispute between the two parties about the election of committee of management, Assistant Registrar has no jurisdiction to decide and he is under the obligation to refer the matter to the Prescribed Authority u/s 25 of the Act.
In the present case, Assistant Registrar has recognized the list of the members and the office bearers of the petitioner No. 2 and on the complaint being made by the respondents No. 3 and 4, he entertained the complaint and started adjudication whether the claim of the petitioner about the committee of management was justified or whether the claim of respondents No. 3 and 4 was justified. u/s 4 of the Act, Assistant Registrar has no jurisdiction to adjudicate such complaint and to adjudicate the issue. The dispute was in the nature of claim and counter claim by the two parties about the committee of management and, therefore, the Assistant Registrar was under the obligation to refer the matter to the Prescribed Authority u/s 25 of the Act, who has only jurisdiction to adjudicate the issue.
The cases referred by learned Counsel for the opposite party are not applicable to the present case.
In the case of Committee of Management, Kisan Shiksha Sadan, Bankasahi, district Basti and anr. v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. (Supra), the question before the Assistant Registrar was whether the person seeking election was a member of society. In the case of Shiksha Prasad Samiti, Allahabad and anr. v. Registrar, Societies, Chits and Firms, U.P., Lucknow and Ors. (Supra), the issue involved was that during the pendency of the matter in the High Court on the expiry of the term of five years, Assistant Registrar on the application granted renewal. The decision in the case of Sri Ram Laxmi Narain Marvadi Hindu Hospital, Godaulia, Varanasi and Ors. v. Assistant Registrar, Firms, Societies and Ors. (Supra), Assistant Registrar is more helpful as referred hereinabove to the petitioner.
For the reasons stated above, impugned order dated 16.04.2004 is set aside. Assistant Registrar is directed to refer the matter to the Prescribed Authority within two weeks from the date of filing of the certified copy of the order. Prescribed Authority is further directed to decide the dispute within another one month. Till the disposal of the matter by the Prescribed Authority, parties shall maintain status-quo and shall be subject to the decision of the Prescribed Authority.
In the result, writ petition is allowed and impugned order dated 16.04.2004 is set aside. Assistant Registrar is directed to refer the matter to the Prescribed Authority within two weeks from the date of filing of the certified copy of the order. Prescribed Authority is further directed to decide the dispute within another one month. Till the disposal of the matter by the Prescribed Authority, parties shall maintain status-quo and shall be subject to the decision of the Prescribed Authonty