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Judgment
Ramesh Ranganathan, CJ
The application, seeking condonation of the delay in preferring this Appeal, is not opposed by Mr. Parikshit Saini, learned Advocate for the respondent, and the delay is therefore condoned.
Heard Mr. Mohd Safdar, learned Advocate for the appellant-writ petitioner, Mr. C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand/respondent nos. 1 to 3 and Mr. Parikshit Saini, learned Advocate for the fifth respondent and, with their consent, the Special Appeal is disposed of at the stage of admission.
The present case has a chequered history. The jurisdiction of this Court was earlier invoked by some others in WPMS No. 2574 of 2012 and batch, and a learned Single Judge of this Court disposed of the writ petitions, by order dated 02.01.2014, holding that, since the matter involves appreciation of disputed questions of the fact, and as the Registrar Firms Societies and Chit Funds, Uttarakhand, Dehradun had the power to decide disputes regarding membership under Section 25 of the Societies Registration Act, the Registrar Firms Societies and Chit Funds, Uttarakhand, Dehradun should look into the matter, and decide the validity of membership of such members whose names appeared in the electoral roll, and whose validity had been challenged by the petitioner in the present writ petition.
The Registrar was also directed to look into the matter, as to whether such members were validly made members as such, after due process of law; and if so to declare them as valid members, otherwise their validity could not be upheld. The Registrar was also directed to look into the matter in great detail and, in case he came to the conclusion that the membership was valid, he should pass a speaking order to that effect giving details of the manner in which each person became a member of the Society; and if he came to the conclusion that those members were wrong and invalid, in the same manner he should give reasons. The Registrar, Societies and Chit Funds was directed to decide the matter as expeditiously as possible, but within a period of eight weeks from the date a certified copy of the order was produced before him. The Registrar was also directed to hear the rival claims, if any, placed before him.
While the fifth respondent was a party to the aforesaid proceedings before the learned Single Judge, the appellant-writ petitioner was not. The Registrar of Societies heard the matter, and passed an order dated 29.03.2014, aggrieved by which the appellant-writ petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution of India.
In the order under appeal, the learned Single Judge, however, proceeded on the premise that his jurisdiction, under Article 227 of the Constitution of India, was invoked. The learned Single Judge held that the scope of interference in proceedings under Article 227 of the Constitution of India was extremely limited; such a power could be exercised in cases where grave injustice had been occasioned or had resulted in failure of justice as when (i) the Court or the Tribunal had assumed a jurisdiction which it did not have; (ii) had failed to exercise a jurisdiction which it did have, and such failure occasioned failure of justice; and (iii) the jurisdiction, though available, had been exercised in a manner which tantamounted to overstepping the limits of jurisdiction.
The learned Single Judge, thereafter, observed that, since the dispute of membership of the Society had been decided by the competent court of jurisdiction under Section 25 of the Societies Registration Act, the same could not be assailed in the writ jurisdiction under Article 227 of the Constitution of India as nothing had been stated in the writ petition that the Registrar, Firms, Societies and Chit Funds Uttarakhand, Dehradun had exercised jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. Not being satisfied that the ingredients of Article 227 of the Constitution of India had been fulfilled, and following the law laid down by the Supreme Court in Radhey Shyam and another vs. Chhabi Nath and others : (2015) 5 SCC 423, the learned Single Judge held that interference under Article 227 was not justified.
The learned Single Judge further observed that the first respondent had passed an order in terms of the Judgement and order dated 02.01.2014 passed by a co-ordinate Bench of this Court in WPMS No. 2574 of 2012; the factual dispute of membership could not be decided by this Court in the writ jurisdiction; it was open to the petitioner to file a Civil Suit with regards the relief claimed; and the question of induction of the members can only be decided by the Registrar of Societies and Chit Funds or by the Competent Civil Court, and could not be decided in the writ Jurisdiction.
As noted hereinabove, the appellant was not a party to the proceedings in WPMS No. 2574 of 2012 and batch dated 2.01.2014, and it was the fifth respondent who was a party thereto. While the aforesaid order may, possibly, bind the fifth respondent, the appellant-writ petitioner, not being a party thereto,0 is not bound by the said judgment. While we cannot brush aside the submission of Mr. Mohd Safdar, learned Counsel for the appellant-writ petitioner, that the jurisdiction exercised by the learned Single Judge was in a writ petition filed under Article 226, and not under Article 227 of the Constitution, the fact remains that the appellant's contention before us is that the Registrar of Societies lacks jurisdiction to pass orders under Section 25 (1) of the Societies Registration Act; and the power conferred thereunder is only for the Registrar to refer the matter to the Prescribed Authority (Sub-Divisional Magistrate), and not to decide the matter himself.
Mr. Mohd. Safdar, learned counsel, would submit that since the Registrar lacks jurisdiction under Section 25(1) of the Societies Registration Act to pass an order, this Court could not have, in proceedings under Article 226 of the Constitution of India, conferred jurisdiction on him, nor would consent of the fifth respondent, for such an order to be passed, confer jurisdiction on the Registrar to pass such an order.
In this context, it is useful to refer to Section 25 of the Societies Registration Act, as amended by U.P. Act 11 of 1984 w.e.f. 30.4.1984. Section 25 relates to disputes regarding election of office-bearers and, under sub-Section (1) thereof, the Prescribed Authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh (now Uttarakhand), hear and decide, in a summary manner, any doubt or dispute in respect of the election or continuance in office of the office-bearers of such society, and may pass such orders in respect thereof as it deems fit.
While it is, no doubt, true that the learned Single Judge had, in his order in WPMS No. 2574 of 2012 and batch dated 02.01.2014, directed the Registrar to pass orders, Section 25(1) makes it clear that the power, conferred on the Registrar thereunder, is only to make a reference to the Prescribed Authority, and not to pass an order himself. The power to pass orders under Section 25(1) is conferred on the Prescribed Authority which, learned counsel on either side agree, is the Sub-Divisional Magistrate. Since no order of the Court would confer jurisdiction of an authority which he lacks, consent of the fifth respondent would not confer jurisdiction on the Registrar of Societies to pass an order.
Suffice it to also note that the attention, of neither the learned Single Judge who passed the order in WPMS No. 2574 of 2012 and batch dated 02.01.2014 nor that of learned Single Judge who passed the order under appeal, appears to have been drawn to the provisions of Section 25(1) of the Societies Registration Act, as amended by U.P. Act 11 of 1984.
In the present case, the test laid down by the Supreme Court, in Radhey Shyam and another vs. Chhabi Nath and others : (2015) 5 SCC 423, is fulfilled, since the order passed by the Registrar of Societies is on the assumption of a jurisdiction which he did not have. Since Section 25(1) only confers on him, the power to refer the matter to the Prescribed Authority (Sub-Divisional Magistrate), and not to undertake the task of determining the validity of the election of members, both the order under appeal, and the order impugned in the writ petition, are set aside. The Registrar of Societies shall refer the matter to the Sub-Divisional Magistrate who shall, after affording an opportunity of being heard to all the parties concerned, pass an order in accordance with law.
The Special Appeal is disposed of accordingly. No costs.