Dr. Naresh Chandra vs State of U.P. and Others

(Civil Misc. Delay Condonation Application No. of 2010)

This is an application seeking condonation of 21 days delay in filing the Appeal. Sufficient ground has been given paragraphs 2 and 3 of the affidavit filed in support of the Delay Condonation Application to the effect that while the appeal was being prepared the deponent of the affidavit received telephonic information that his mother who was living at Katni M.P. had fallen ill. The deponent went to Katni and admitted her mother in the Hospital at Nagpur and ultimately she died on 17/9/2010.

Cause shown is sufficient.

Delay is condoned.

Ref: Special Appeal Defective No. - 928 of 2010

Heard learned Counsel for the Appellant and Shri Shailendra appearing for the contesting Respondents.

This Special Appeal has been filed against the judgment and order of the learned Single Judge dated 13/8/2010, by which order the learned Single Jude had allowed the writ Petition filed by the Respondents challenging the order passed by the Deputy Registrar, Firm Societies and Chits dated 31/7/2010. A dispute regarding election dated 15/11/2009, arose. Appellant claims that in pursuance of the said election they submitted their list before the Deputy Registrar Firm Societies. Certain life members filed complaints dated 22/12/2009 and 28/12/2009 and several other complaints were submitted challenging the election dated 15/11/2009 before the Deputy Registrar. The list submitted by the Appellants was registered on 23/11/2009 and thereafter the complaints were filed and the matter was taken cognizance of. The Deputy Registrar, after detailed consideration took the view that unless the dispute is raised by 1/4th members of the society, same cannot be taken cognizance of with regard to election which is claimed to be held on 15/11/2009. The complaints were rejected and the list was registered by detailed order dated 31/7/2009, declaring the earlier order of the Deputy Registrar dated 23/11/2009, as correct. The said order was challenged by the Respondents before the learned Single Judge who allowed the writ Petition setting aside the order of the Deputy Registrar with the direction to refer the matter to the Prescribed Authority for decision u/s 25(1) of the Societies Registration Act, 1860 ("hereinafter called the "Act"1860"). The learned Single Judge had also directed for maintaining status quo with certain rider.

Learned Counsel appearing for the Appellants challenging the order contended that the Deputy Registrar had rightly registered the list on the basis of the election held on 15/11/2009.The judgment which has been relied on by the counsel for the Appellant in 2009 (5) ADJ 640, Kalrav Agarwal and Anr. v. State of U.P. and Ors. was a case where the order passed by Deputy Registrar was directly challenged in writ Petition. The said case was rightly distinguished by the learned Single Judge. The writ Petition was filed by 2 members of the Society. The writ Petition was held to be not maintainable at the instance of two members and no such ratio was laid down that unless before the Deputy Registrar 1/4 members of the society files complaint, the complaint cannot be examined.

The Division Bench of this Court in All India Council and Another Vs. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and Another, has laid down that if a dispute is raised with regard to election or continuance of an office bearer of a society, the Registrar should refer the same for adjudication to the Prescribed Authority and he cannot claim to decide the dispute himself. Following was laid down in paragraph 9:

We are fortified on this point by a long line of decisions of this Court in which the view taken is that if such a dispute is raised before or is brought to the notice of the Registrar, he should refer the same for adjudication to the Prescribed Authority and that he cannot claim to decide that dispute himself. We will content ourselves with citing just two decisions (See 1981 UPLBEC 308, Vijai Narain Singh v. Registrar, Chit Funds, Firms and Societies, U.P. and 1984 UPLBEC 550 : 1984 ALJ 583, Maha Narain Pandey v. Registrar, Chit Funds, Firms and Societies, U.P. these two decisions have also been recently followed by a decision of this Court in Writ Petn. No. 14879 of 1986 decided on December 11,1986.

A perusal of the aforesaid judgment clearly indicates that a dispute within the meaning of Section 25 of the Act, 1860, had arisen the Deputy Registrar having noticed the dispute has brushed aside the same with the wrong premise that unless 1/4th members raise the dispute, same cannot be considered. The requirement of raising of the dispute by 1/4th members of the society is before the Prescribed Authority directly and the Deputy Registrar could not have refused to refer the matter to the Prescribed Authority on the ground which has been taken by the Deputy Registrar. We are satisfied that the learned Single Judge has taken the correct view of the matter in setting aside the order of the Deputy Registrar and directing the dispute to be decided u/s 25 of the Act, 1860. We do not find any merit in the appeal. Appeal is accordingly dismissed.