Moti Lal Memorial Society and Another vs State of U.P.and Others

Devi Prasad Singh, J.—This writ petition under Art. 226 of the Constitution of India has been filed by the petitioners, feeling aggrieved with the order, passed by the Deputy Registrar, Firms, Societies & Chits, Lucknow Region, Lucknow, by which the alleged resolution of Governing Council of Moti Lal Memorial Society (in short hereinafter referred as ''Society'') has been annulled restoring the right of opposite party No.4 to function as the President of the Society.

Brief facts are summarized as under:

Moti Lal Memorial Society is a Society, registered under the Societies Registration Act, governed by its own byelaws, rules and regulations. The election of the Governing Council was held on 22.7.2005 for the period of three years. The opposite party No.4 was elected as its President/Chairman and Shri Vishnu Bhagwan Agarwal was elected as its General Secretary. A meeting of the Governing Council was convened by agenda circulated by the General Secretary of the Society by letter dated 10.3.2007, a copy of which has been filed as Annexure No.CA7 to the counter affidavit. The agenda contains 38 items for adjudication in the meeting, scheduled for March 21, 2007. The letter circulated by the General Secretary shows that the meeting of the Governing Council was scheduled in pursuance to the directions issued by the President by an order dated 6.3.2007. It appears that being not satisfied with the items contained in the Agenda for the meeting scheduled for 21.3.2007, the President circulated another letter to the members on 15.3.2007 (CA18) with revised items (27 in number) on the ground that some of the items contained in the earlier agenda were included without his consent. The meeting of the Governing Council was held on 21.3.2007, the minutes of the meeting have been filed is Annexure3 to the writ petition). In the said meeting, 12 members had participated as is evident from the Minutes. Since entire item of the Agenda could not be discussed, it was adjourned for 27.4.2007 to consider the remaining items circulated through earlier agenda. However, the opposite party No.4 under certain alleged compelling circumstances and being aggrieved with the conduct of certain office bearers had cancelled the meeting scheduled for 27.4.2007. The decision taken by the President was alleged to have been circulated by his letter dated 25.4.2007, a copy of which has been annexed as Annexures CA20 and 21 to the Counter Affidavit. The decision taken by the President for cancellation of the meeting dated 27.4.2007 was also said to have been published in the newspaper on 27.4.2007.

Shri Anil Tiwari, learned counsel for the petitioners while assailing the impugned order submitted that the meeting of the Governing Council was held on 27.4.2007. since the opposite party No.4 was not present, the meeting was held under the presidentship of the senior member of the Society Shri Vimal Kumar Sharma. In the said scheduled meeting, six members were alleged to have participated, namely Shri Brajbhushan Jindal, Shri Vimal Kumar Sharma, Dr. Om Prakash Agrawal, Dr. Narsing Narain Tiwari, Shri Som Prakash Gupta and Shri Vishnu Bhagwan Agrawal. Shri Vishnu Bhagwan Agrawal is the General Secretary of the Society. Shri Vimal Kumar Sharma presided the meeting as President. A copy of the proceeding dated 27.4.2007 has been filed as Annexure4 to the writ petition. Attention of the Court has also been invited to the records of Writ Petition No.2839 (M/S) of 2007 Nagendra Nath Singh versus The Deputy Registrar, Firms Societies & Chits, Lucknow Mandal, Lucknow and others.

Though the meeting was convened on 21.3.2007 but a perusal of the Minutes filed as Annexure No.4 to the writ petition indicates that its minutes were prepared and converted into writing on 1.5.2007. The petitioners'' counsel submitted that on account of serious lapses on the part of the President of the Society, by unanimous resolution, the opposite party No.4 was removed from the office of the President by reduction of his term of office in pursuance to Rule 23(b) of the Rules of the Society. It shall be appropriate to reproduce the relevant portion from the Minutes of the alleged Meeting dated 27.4.2007 (Annexure4):

It appears that some dispute was perpetuating between the General Secretary and the President of the Society relating to the administration and management of the Society. When the facts came to the knowledge of the President relating to the alleged resolution dated 27.4.2007, passed by the six members of the Society in the meeting held on 27.4.2007, he submitted a complaint to the Deputy Registrar on 14.5.2007 raising a plea that the meeting held on 27.4.2007 was unauthorized and without jurisdiction. It was also alleged by the opposite party No.4 that the General Secretary is guilty of serious financial irregularities. In response to the complaint submitted by the opposite party No.4, Shri Vishnu Bhagwan Agrawal, the General Secretary has submitted a reply dated 18.5.2007. Shri Vishnu Bhagwan Agrawal also submitted a reply to the letter dated 25.5.2007, submitted by the opposite party No.4. It was submitted before the Deputy Registrar by the opposite party No.4 and another member Shri Veersen that the meeting held on 27.4.2007 was without jurisdiction, more so when it was already cancelled by the President of the Society. It was also submitted before the Deputy Registrar that 30 days notice was not given to the President before ousting him from his post. The submission before the Deputy Registrar was that Rule 23(b) of the Rules of the Society was not attracted under the facts and circumstances of the present case. Hence removal of the President is bad in law.

On the other hand, the submission of Shri Vishnu Bhagwan Agrawal before the Registrar was that the tenure of the President was determined by the Governing Council in pursuance to the power conferred by Rule 23(b) of the Rules of the Society. The Deputy Registrar after hearing the parties arrived at the conclusion that removal of the opposite party No.4 from the office of the President of the Governing Council in pursuance to Rule 23(b) was not lawful. Since the adjourned meeting was cancelled by the President, hence also, the General Secretary was not competent to convene the meeting and expel the President without any inclusion of the issue in the agenda. By impugned order a finding has been recorded by the Deputy Registrar that the office bearers selected for the society in the election held on 22.7.2005 shall continue to discharge their duty for the period they were elected and registered with the Registrar of the Society.

It shall be relevant to note at this stage that no objection seems to have been raised before the Deputy Registrar relating to his competence and the parties had appeared to defend their action. After hearing the parties, the Registrar had declared that the resolution of the Governing Council dated 27.4.2007 and subsequent resolution dated 18.5.2007 was bad, being violative of Rules of the Society and also for want of jurisdiction. A subsequent proceeding, by which some of the office bearers were ousted, held in the presidentship of the opposite party No.4 was also declared to be bad in law.

While assailing the impugned order, Shri Anil Tiwari, learned counsel for the petitioners has proceeded to submit that the Deputy Registrar acted without jurisdiction and Rule 23(b) of the Society confers power to reduce the term of the office bearer individually as well as cumulatively. According to the learned counsel, the resolution dated 27.4.2007 does not suffer from any infirmity or illegality, hence it was not proper for the Deputy Registrar to interfere with the proceeding in question.

On the other hand, Mr. Ramesh Kumar Singh, the learned counsel for opposite party No.4 submits that there is serious complaint against the General Secretary and some other office bearers relating to financial mismanagement and misappropriation of the funds of the Society. Section 24 of the Societies Registration Act empowers the Registrar to pass such order after hearing the parties. It has also been submitted by the respondent No.4''s counsel that interference with the impugned order shall amount to restoration of the illegal order or the resolution passed at the behest of the General Secretary Shri Vishnu Bhagwan Agrawal. Once the deferred meeting of the Governing Council was cancelled by the President, then the decision taken by the six members of removing the opposite party No.4 from the office of the President was bad in law for want of jurisdiction.

Supplementing his arguments, it has been further submitted by the respondents'' counsel that Rule 23(b) relates to reduction of term of the office bearers whereas in the present case, a decision for removal of the opposite party No.4 from the office of the President has been taken by a meeting convened and attended by unauthorized persons. Since the meeting held on 27.4.2007 was in itself bad in law for want of jurisdiction, convened by incompetent persons, it is nullity in law, hence interference by this Court under Art. 226 of the Constitution of India against the impugned order passed by the Registrar shall amount to interfere for the purpose of restoration of an illegal order. Any interference with the impugned order shall amount to perpetuate illegality.

It shall be appropriate to consider the Memorandum of Association as well as rules governing the functioning of the Society. According to the Memorandum of Association of the Society, a copy whereof has been filed as Annexure No.2 to the writ petition, the Governing Council of the Society shall consist of 17 members, out of which 13 are founding members and four members shall be elected or nominated as prescribed under the rules, framed by the Society.

Accoridng to the Rules of the Society, the Society has got five categories of members, namely, Foundation Member, Life Member, Associate Member, Patron and Ordinary Member. Rule 10 contains the provisions for removal of the members of the Society. Rule 11 deals with the constitution of the Governing Council. Rule 13 relates to the meeting of the Governing Council, Rule 14 relates to quorum and Rule 16 relates to issuance of notice for the purpose of meeting of the Governing Council. Rule 23 deals with the office bearers of the Society and Rule 25 deals with the power and duties of the office bearers of the Society. These rules are relevant for the purpose of disposal of the present writ petition, hence are reproduced as under:

�Rule 10: (i) The Governing Council may remove a ''Foundation Member'', a ''Patron'', a ''Life Member'', an ''Associate Member'', or an ''Ordinary Member'' from its membership if he:

(a) is of unsound mind and stands so declared by a competent authority, or

(b) is an undischarged insolvent, or

(c) is convicted by a court of law of an offence involving moral turpitude, or

(d) is found to have committed a breach of rules and regulations of the Society, or

(e) if he misappropriates, misuses, fails or refuses to account for the property of the Society under his care, which lapse palpably casts a reflection on his integrity or nonesty in the estimation of the Council, or

(f) is held by 3/5th of the members of the Council to be behaving in a manner which is prejudicial or detrimental to the interest, reputation and discipline of the Society.

(g) if he ceases to take interest in the activities of the Society and fails to attend five consecutive meetings of the General Body without satisfactory reasons.

(ii) A person against whom action under this rule is contemplated may be afforded an opportunity to be heard in camera before the action is finally taken but he may not be given anything in writing in relation to the allegations against him.�

Rule 11: (a) The Governing Council shall be composed of 17 members in accordance with Art. 3 of the Memorandum of Association of the Society.

(b) Out of 4 members referred to in clause (b) of Art. 3 of the Memorandum of Association of the Society, the Governing Council shall elect:

(i) three from amongst the Patrons and Life Members; and

(ii) one from amongst the Associate and Ordinary Members;

Provided that the Governing Council may, if it considers necessary vary the above proportion at any time.

(c) All casual vacancies among the members, other than foundation Members, of the Governing Council shall be filled up by election by the members for the time being of the said Council present in the meeting specially convened for the purpose and of which 15 days'' notice has been given to each member of the Council.

(d) For the purposes of Clauses (b) and (c) of this rule each member of the Governing Council present shall have one vote in respect of each vacancy, which is to be filled up in that meeting.

(e) The person who obtains the highest number of vote shall be declared to have been elected in that vacancy. But in case of the between two or more persons, who receive the largest number of votes, the chairman shall have second vote and a person in whose favour he casts his vote shall be declared to have been elected.

(f) If a member who represents the Patrons or the Life Members or the Associate Members on the Governing Council, dies, resigns or is removed from the office, the casual vacancy so caused shall be filled in from the class which he represented and the person so elected shall hold office for the remainder of the term of the member in whose vacancy he has been elected.

(g) The term of the members elected as in (b) above shall be 3 years, provided that they shall be eligible for reelection.

(h) A member of the Governing Council may resign his office by writing under his own hand, addressed to the President of the Governing Council.

(i) A member may be removed from the membership of the Governing Council if he:

(i) fails to attend 5 consecutive meetings of the Council without satisfactory reasons;

(ii) is of unsound mind and stands so declared by a competent authority;

(iii) is an undischarged insolvent;

(iv) is convicted by a court of law of an offence involving moral turpitude; or

(v) if he does any act of omission or commission which he knows will be, or is likely to be injurious to the interests of the Society;

Provided that no such member shall be removed from his office unless a resolution to that effect has been passed by the Governing Council, at a special meeting convened for the purpose, by a majority of not less than � of the total members present in the meeting and of which at least 30 days notice has been given to each member.�

Rule 13: (a) The Governing Council shall meet normally twice in a year but it may meet as often as the President may consider necessary.

(b) The General Secretary shall call the meetings of the Council to transact such business as may be notified.

Rule 14: The quorum for a meeting of the Governing Council of the Society shall be four members present in person.

No quorum shall be required for a meeting held to transact business notified for a meeting which has been adjourned for want of quorum.�

Rule 16: The notice of a meeting of the Council shall be issued at least seven days before the date of meeting:

Provided that an emergent meeting of the Council may be called at 48 hours notice.�

Rule 23: (a) The Society shall have a President, a VicePresident and an Honorary General Secretary. They will be elected by the Governing Council from amongst the Foundation Members in the case of the President and from amongst its own members in the case of others.

The Governing Council may also, if it deems necessary, have either a Treasurer or a Joint Secretary or both, who would be elected by the Governing Council from amongst its members.

(b) The term of the office bearers shall be three years unless determined earlier by the Governing Council, under Special circumstances.

(c) The retiring office bearers shall be eligible for reelection.

(d) The retiring office bearers shall carry on discharging their duties until their successorsinoffice are elected or appointed, as the case may be, and have taken over charge.

(e) Any casual vacancy in the office bearers shall be filled for the remaining periode in the same manner as that of the original office holder.�

The main thrust of the argument of the petitioners'' counsel is that in the present case, the opposite party No.4 has not been removed from his office but his term has been reduced as determined by the Governing Council.

On the other hand, it was submitted by the learned counsel for the respondent No.4 that the opposite party No.4 was virtually removed from his office without following the provisions contained in Rule 11 of the Rules of the Society (supra).

It is also settled proposition of law that while considering a statutory provision, rules or regulations, a provision should not be considered in isolation but the entire provisions have to be considered as well.

It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute, as the case may be, should be considered. According to Maxwell on the Interpretation of Statutes (12th Edition page 36) any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected.

Relevant portion from Maxwell on the Interpretation of Statutes (12th Edition page 36) is reproduced as under:

�A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.�

In view of above, the Court should always avoid interpretation, which would leave any part of the provision to be interpreted without effect. While doing so every clause of a statute is to be construed with reference to the context and other clauses of the Act to make a consistent enactment of the whole statute. According to Maxwell (supra at page 47), statutory language should not be read in isolation but in its context.

Learned author (supra) again proceeded to consider the judgment of Australian High Court and views of Lord Steyn in a case reported in 2002 (4) All ER 654, R v. National Asylum Support Service, (page 35) to quote:

�As rightly pointed out by the High Court of Australia, �the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses context in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate meansone may discern the statute was intended to remedy. LORD STEYN recently expressed the same view was follows: �The starting point is that language in all legal texts conveys meaning according to the circumstance is which it was used. It follows that context must always be identified and considered before the process of construction or during it. It is therefor wrong to say that the Court may only resort to evidence of the contextual scene when an ambiguity has arisen.�

Thus, the exposition ''ex visceribus actus'' is a long recognized rule of construction. Words in a statute often take their meaning from the context of the statute as a while. They are, therefore, not to be considered in isolation. Hon''ble Supreme Court in a case reported in �AIR 1992 SC 1, Mohan Kumar Singhania v. Union of India, has proceeded to hold as under:

�However, it is suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, were are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statute/Rules/regulations relating to the subject matter. Added to this, in construing statute, the Court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and underlying intendment of the said statute and that every statute is to be interpreted about any violence to its language and applied as far as its explicit language admits consistent with the established rules of interpretation.�

The aforesaid settled rule of interpretation has been affirmed by the Apex Court from time to time in various cases including 1974 (1) SCC 596, M/S Gammon India Ltd and others v. Union of India and others (Para 19), AIR 1978 SC 995, M/s Punjab Beverages Ltd. Chandigarh v. Suresh Chand and another (Para 5), AIR 2002 SC 829, Kailash Chandra and another v. Mukundi Lal and others (Para 10) and AIR 2000 SC 66, Grasim Industries Ltd. and another v. State of M.P. and (1985) 1 SCC 591, S. Sundaram Pillai and others v. V.R. Pattabiraman and others.

The aforesaid principle of law has also been considered by a Division Bench of this Court, (of which I was a member) in a case, reported in 2006 (24) LCD 1373, Umesh Chandra and another v. Mahila Vidyalaya Society, Aminabad, Lucknow and others.

Keeping in view the aforementioned settled principle of law, Rule 23(b) should not be read in isolation.

Rule 10(1) of the Rules relates to procedure which should adopted for removal of Foundation Member, Patron, Life Member, Associate Member or an Ordinary Member from a membership. On the other hand, Rule 23 relates to reduction of term. The members of the Society to their wisdom had while preparing the ruels used the word, �removal� in Rule 3(1) and the term of office in Rule 23(b). The ground for removal of the term has been given in Rule 10(1) whereas the ground for reduction of the term of office bearers has not been given.

According to Black''s Law Dictionary, the word, ''term'' has been defined as under:

�1. A word or phrase; esp., an expression that has a fixed meaning in some field.�

In the Law Lexicon by P. Ramanatha Aiyar''s, the word ''term'' has been defined as under:

�Term: Appointed limit; limited period; period during which university, school, or judicature is at work.�

�Term of Office� means the period or limit of time during which the incumbent is permitted to hold.�

Thus, a plain reading of Rule 23 reveals that it relates to original period of the elected office bearers. Once an office bearer is elected for a particular period in the present case, three years, he or she shall have right to complete his or her term, unless removed in pursuance to power conferred by Rule 10(1) of the Rules of the Society. The various grounds and circumstances given in Rule 10(1) to exercise power of removal seems to equally apply to members as well as office bearers. In other words, removal means removal on account of certain misconduct or inefficiency in service stipulated by Rule 10(1). In case a person is removed from the membership then as a natural consequence he or she shall lose his or her office or post.

The determination of the term of office bearer means the determination of tenure for the period for which a member is elected as office bearer. Ordinarily, there shall not be a vacuum in a Society and there shall be office bearers discharging their duties to manage the Society, elected in accordance to rules. The power conferred by Rule 23(b) seems to corelate with the reduction of the term of office bearers. It does not seems to postulate to confer power for removal of an office bearer on account of inefficiency in service or for certain other misconduct.

For exercise of power under Rule 23(b) of the Rules of the Society, it shall be necessary that the Governing Council should take a decision for reduction of the tenure of the office bearers by amending the Rules. Meaning thereby, the Governing Council should pass a resolution showing its intent to reduce the tenure of the office bearers to less than three years or may increase the same. The power conferred on the Governing Council of the Society does not provide only for reduction of the term of office but it also empowers to increase the term of office.

The rule makers have consciously used the term, ''office bearers'' which, being in plural, means that while exercise of power for reduction or increase of the term, a decision should be taken consciously relating to the term of office bearers. Since reduction or increase of term shall affect the wishes of voters who elected the office bearers, it shall always be necessary that before doing so, such important issues must be mentioned in the agenda of the meeting so convened for the purpose.

In the present case, a plain reading of the resolution dated April 27, 2007 at the face of record shows that the opposite party No.4 was relieved from his office under the garb of Rule 23(b). The resolution does not speak that the term of the office of the President has been reduced; rather it shows that the opposite party No.4 has been removed from his office because of alleged inefficiency in discharge of duty on account of his old age and other reasons given in the resolution (supra). Virtually, at the face of the record, the Executive Council in its alleged meeting has exercised the power of removal under the garb of Rule 23(b) which does not seem to be correct exercise of power. Rule 23(b) has been incorrectly interpreted by the members while adopting its recourse to remove the opposite party No.4 from the post of President. The Executive Council in its alleged meeting dated 27.4.2007 was not competent to pass a resolution for removal of the opposite party No.4 under the garb of reduction of term of office. Virtually, no resolution was passed for reduction of the term of office of the ''President'' of the Society. It was passed for removal of opposite party No.4.

It is settled law that a thing should be done in the manner provided in the Act or statute and not otherwise vide Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; Patna Improvement Trust v. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of U.P. v. Singhara Singh and others, AIR 1964 SC 258; Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 (para 34); Chandra Kishore Jha v. Mahavir Prasad and others, 1999 (8) SCC 266; Delhi Administration v. Gurdip Singh Uban and others, 2000(7) SCC 296; Dhanajay Reddy v. State of Karnataka, AIR 2001 SC 1512; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, 2001 (1) SCC 633; Prabha Shankar Dubey v. State of M.P., AIR 2004 SC 486 and Ramphal Kundu v. Kamal Sharma, AIR 2004 SC 1657; Taylor v. Taylor, (1876) 1 Ch. D. 426; Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke v. Govind Joti Chavare and others, AIR 1975 SC 915; Chettiam Veettil Ammad and another v. Taluk Land Board and others, AIR 1979 SC 1573; State of Bihar and others v. J.A.C. Saldanna and others, AIR 1980 SC 326; A.K. Roy and another v. State of Punjab and others, AIR 1986 SC 2160; State of Mizoram v. Biakchhawna, 1995 (1) SCC 156; J.N. Ganatra v. Morvi Municipality Morvi, AIR 1996 SC 2520; Babu Verghese and others v. Bar Council of Kerala and others, AIR 1999 SC 1281; and Chandra Kishore Jha v. Mahavir Prasad, (1998) 8 SCC 266.

Accordingly, neither the Executive Council nor the members of the Society have got right to take a decision in violation of rules of the Society. The power must flow from the rules of the Society while taking decision with regard to a matter, more so when it relates to removal of the President of the Society or any office bearer which seems to be lacking in the present case.

It was argued that once the deferred meeting was cancelled by the President, the meeting held on 27.4.2007 was neither lawful nor justified. The learned counsel for the respondents has relied upon various books where such circumstances have been dealt with by the learned authors of respective field.

In the book, �Company Meetings and Resolutions� by C.R. Datta, it has been observed that service of notice sent by registered post and by publication in the newspaper shall be sufficient to meet out the requirement. Notice published by circulation or through advertisement shall be deemed to have been duly served on the members. Learned author further held that once the Chairman takes a decision showing inability to hold meeting, it shall govern the field, unless set aside by the competent Court or by resolution at any general meeting. The learned author further observed that no resolution shall be deemed to have been duly passed by a Board or a Committee thereof unless it is placed in the agenda. It has been further observed by the learned author that the Chairman has got absolute discretion in regard to inclusion or noninclusion in the minute of any matter. To reproduce the relevant portion:

�Powers The Chairman has prima facie authority to decide all incidental questions which arise at such a meeting and necessarily require decision at the moment. If his decision is disputed it must be regulated by majority of those present. But the Chairman''s decision on a difficult point arising at the meeting and given bona fide will stand until set aside by the Court or by a resolution at another general meeting convened for that purpose.�

�Minutes The Chairman has absolute discretion in regard to the inclusion or noninclusion in the minute of any matter which in his opinion is or could be regarded as defamatory of any person or irrelevant or immaterial to the proceedings or detrimental to the interests of the company. The minutes are only evidence of the fact of the matters recorded therein. It may be proved that a particular business though transacted at the meeting was not recorded in the minutes.�

In the same book (supra), learned author has further proceeded to indicate that in an adjourned meeting, only the business left unfinished at the original meeting can be considered. No new business outside the scope of the meeting can be considered. Virtually, the adjourned meeting is the continuation of considered. Virtually, the adjourned meeting is the continuation of the original meeting. To reproduce relevant portion from the aforesaid book (supra):

�An adjourned meeting can consider only the business left unfinished at the original meeting. No new business outside the scope of the notice may be introduced at the adjourned meeting. Notices required to be given or proxies required to be lodged a given time before the meeting must be given or lodged before the requisite time of the original meeting. Such notices and proxies given before the original meeting remain valid at the adjourned meeting����..

At the adjourned meeting the quorum as provided in the articles is not necessary. The members present will form the quorum. This is because the adjourned meeting is the continuation of the original meeting and the specific provisions of Section 174 of the Act. However, the articles of a company may provide that quorum is necessary to pass every resolution.�

The aforesaid principle relating to affecting of service and adjourned meeting seems to be reiterated in one another book, �the Conduct of and Procedure at Public Company and Local Government Meetings (Crew), written by T.P.E. Curry. To reproduce relevant portion:

�Adjourned meetings A meeting may be adjourned to complete unfinished business, and in such cases unless the relevant rules otherwise provide, no notice of such adjourned meeting need be given, but no business not specified in the notice of the meeting can be transacted at the adjourned meeting.�

It has been further held by the learned author (supra) that the Secretary does not have power to summon a meeting without delegate authority of the President.

The power of the Chairman and transaction of business in the adjourned meeting as well as the mode of affecting of service discussed hereinabove (supra) finds support also from one other book, �The Law and Procedure of meetings in India�, by Sohrab R. Davar. The learned author has observed that an adjourned meeting can only continue and transact the business which was left over at the original meeting and cannot go outside its scope. It is further held by the learned author that the Chairman has prima facie authority to exercise all independent of question which arise at a meeting and require his decision. It is entirely at the discretion of the Chairman to adjourn or not a meeting even though the meeting may resolve that he should do so. It is further observed by the learned author that the adjourned meeting is the continuation of original meeting and the irregularity committed in the original meeting will equally affect the adjourned meeting.

In case the present controversy is considered in the light of the aforesaid principle, it may be noticed that under Rule 11(g), the term of members elected shall be three years and at least seven days notice shall be necessary to convene the meeting of the Council. For the purpose of removal of a member under Rule 10, 30 days clear notice shall be necessary and a resolution must be passed by the majority of � of the total members present.

Rule 20 relates to business of the General Body. It provides that the Chairman of the meeting shall place all relevant information through General Body. Rule 21 empowers the General Secretary to convene the meeting of the General Body within two weeks by circulating a notice two weeks prior to the scheduled date. However, Rule 24 provides that the President shall be the Chief Executive of the Society and all office bearers shall function under his guidance and control. Under Rule 24(3) (d), it has been provided that ordinarily, the General Secretary shall follow the directions issued by the President in connection with the executive business from time to time. For convenience, Rule 24 is reproduced as under:

�Rle 24: (1) The President shall be the Chief Executive Head of the Society. He shall function for and on behalf of the Society during the absence of the Council. All such actions shall be brought to the notice of the Council in due course. All the other office bearers shall function under his guidance and control.

(2) The VicePresident shall exercise the powers of the President during his absence or when on leave. The President may delegate any of his functions, duties and powers to the VicePresident for any specified time.

(a) Subject to the restrictions laid down by the Governing Council or by these rules, or by or under the Societies Registration Act (XXI of 1860) or the Memorandum of Association of the Society or regulations framed by the Governing Council, all executive business of the Society shall, subject to the following clauses, be carried on by the Honorary General Secretary.

Provided that the funds of the Society shall be operated and all cheques issued on its behalf shall be signed by the person or persons appointed by the Governing Council, and

Provided further that the Governing Council may assign any work and duties to the Joint Secretary and the Treasurer, if it elects any one or both of them.

(b) The Honorary General Secretary shall place policy and other important matters before the President and shall obtain his orders thereon.

(c) The President may call for any papers from the Honorary General Secretary and pass such orders on them as he may deem fit.

(d) The Honorary General Secretary shall follow the directions issued by the President in connection with the executive business from time to time.�

In the present case, a perusal of the original notice circulated for the meeting of 10.3.2005, a copy whereof has been filed as Anenxure CA20 to the counter affidavit indicates that it was issued along with the agenda in pursuance to the direction issued by the President of the Society using the following words:

In view of the above, the power of President to convene the meeting or cancel it, seems to be unfettered. Once the President had cancelled the meeting, then any decision taken by six members of the Society on 27.4.2007 shall not be treated as a decision of the Executive Council. It may be noticed that the meeting of 21.3.2007 was attended by 12 members of the Society whereas in the meeting convened on 27.4.2007, there were six members, out of which one was alleged to be elected as President to preside the meeting and other was General Secretary. Accordingly, the alleged meeting convened on 27.4.2007 (supra) cannot be treated as a meeting of the Executive Council of the Society. Any decision taken thereof shall lack legal sanctity or binding effect.

In the present case, as observed in the preceding paras, the meeting convened by certain members on 27.4.2007 was a meeting held without jurisdiction and in violation of the rules of the Society and lacks legal sanctity. Interference with the impugned order shall amount to validate the decision taken by the said meeting and confirming the power to run the Society on such persons who are not entitled to do so.

Coming to next limb of argument relating to exercise of power of judicial review under Article 226 of the Constitution of India. On behalf of the petitioner, Shri A.K. Tiwari has invited the attention to the judgments of the Apex Court, reported in (2004) 6 SCC 588, M.C. Mehta v. Union of India and others; (1981) 1 SCC 80, Ramji Dayawala and Sons (P) Ltd. v. Invest Import (Para 20) and (2003) 11 SCC 241, Pawan Kumar v. State of Haryana (Para 17).

While relying upon these cases, it was emphatically argued by the petitioners'' counsel that the power exercised by the Deputy Registrar cannot be treated as power exercised under Section 24 of the Societies Registration Act. He acted without jurisdiction, hence the impugned order is lliable to be set aside under extraordinary jurisdiction of Art. 226 of the Constitution of India.

There is no doubt over this proposition of law that in case an order is illegal, without jurisdiction or the authorities have acted in violation of the statutory provisions, such order may be rescinded by this Court by exercise of power conferred by Art. 226 of the Constitution of India.

On the other hand, learned counsel for the respondents has submitted that since there was serious complaint of financial irregularity alleged to have been committed by the General Secretary and his associate Registrar and the Deputy Registrar has acted in their jurisdiction to hold an enquiry and while doing so, he was also right to set aside the resolution dated 27.4.2007. It has also been submitted that in case the impugned is set aside, it shall amount to restoration of an illegal order which shall shatter the democratic status of the Society. Public interest requires that this Court should not interfere under its power conferred by Art. 226 of the Constitution of India.

Mr. R.K. Singh has relied upon various judgments, reported in AIR 1957 SC 227, A.M. Alison and another v. B.L. Sen and others; [(1990) 2 UPLBEC 983], Om Prakash v. U.P. Secondary Educaiton Service Commisison, Allenganj, Allahabad and others and AIR 1966 Allahabad 156, Bux Singh v. Joint Director of Consolidation, U.P., Lucknow and others.

Hon''ble Supreme Court in a recent case, reported in (2005) 4 SCC 741, Board of Control for Cricket in India and another v. Netaji Cricket Club and others, held that a Society is bound by rules framed by it and its officebearers must exercise their powers not only in accordance therewith but in an honest and fair manner keeping in view the public good and welfare. The executive body of a Society is bound to follow the doctrine of fairness and good faith. It cannot act arbitrarily, whimsically or capriciously. Their Lordships of the Apex Court have proceeded to hold as under:

�82. An association or a club which has framed its rules is bound thereby. The strict implementation of such rules is imperative. Necessarily, the officebearers in terms of the Mamorandum and Articles of Association must not only act within the four corners thereof but exercise their respective powers in an honest and fair manner, keeping in view the public good���.�

One other aspect of the matter is that the opposite party No.4 was elected as the President of the Society for three years. Before completion of his term, he has been removed. The resolution has been passed individually against him which cannot be treated as a resolution of removal. A combined reading of the rule of the society in letter and spirit dealing with the term of office does not empower the Governing Council or its General Body to remove an office bearer for misconduct under the garb of reduction of term of office. Whenever such power is exercised, it shall be perspective in nature. It cannot be used as a weapon to remove an office bearer. It is settled law that what cannot be done directly, it cannot be done indirectly vide (2003) 2 Supreme Court Cases, 593, Dayal Singh and others v. Union of India and others.

The opposite party No.4 was the elected office bearer. He has been removed without any show cause notice and without placing the question relating to removal or reduction of term in the agenda of the Society. The opposite party No.4 was having vested right to continue for a period of three years. Any decision taken by a group of persons or even the Executive Council without placing such item in the agenda and without serving a notice shall be violative of principle of natural justice. Hon''ble Supreme Court in the case, reported in (2001) 1 SCC 182, Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant and others, held that fairness in procedure is part and parcel of the principle of natural justice, guaranteed under Art. 14 of the Constitution of India.

In (2003) 4 SCC 239, High Court of Judicature for Rajasthan v. P.P. Singh and another, the Apex Court has held that the illegality committed by unfair action cannot be cured or rectified in any manner whatsoever.

In (2006) 11 SCC 624, I. Nelson and another v. Kallayam Pastorate and others, their Lordships of the Apex Court held that while dealing with a case relating to charitable organizations, the Court cannot oversee its functioning. The Court undisputedly acts as a guardian of such charitable Society. Accordingly, while exercising power of judicial review, it shall always be necessary for the Courts to be careful that the power of judicial review conferred by Art. 226 of the Constitution of India should not be permitted to be abused in such a manner which may amount to perpetuate illegality.

In another case, reported in (2007) 6 SCC 130, D. Dwarakanath Reddy v. Chaitanya Bharathi Educational Society and others, their Lordships of the Apex Court held that the principle of natural justice requires the issuance of notice calling for an explanation and affording reasonable opportunity of being heard.

In a case reported in 2006 (24) LCD 1373, Umesh Chandra and another v. Mahila Vidyalaya Society, Aminabad, Lucknow and others, while dealing with the applicability of the principle of natural justice, a Division Bench of this Court (of which, I was a member), it has been held that the individual member or office bearer of a Society does not have got right to represent or take cause of the Society unless authorized by the rules. It has been further held that whenever a dispute arise with regard to the members or the office bearers of the Society, the affected persons should be given opportunity of hearing. Relevant portion from the case of Umesh Chandra (supra) is reproduced as under:

�21. The individual member or the office bearer does not have got right to represent or take cause of the Society unless authorized by the Rules or Regulations or by the governing body is also evident from Section 7 of the Act. In case any individual member dies or cease to exists as office bearer then suit shall not abate in view of provision contained in Section 7 of the Act.�

In another case, reported in AIR 1966 SC 828, Gadde Venkateswara Rao v. Government of Andhra Pradesh and others, Hon''ble Supreme Court reiterated the settled proposition of law that the High Court while exercising power conferred by Art. 226 of the Constitution of India should not restore another illegal order.

A Division Bench of this Court in a case reported in [(1992) 2 UPLBEC 960] Ashok Kumar Pandey and others v. Basic Shiksha Adhikari and others, while reiterating the aforesaid proposition of law held that the power under Art. 226 of the Constitution should not be exercised to quash an order which may amount to putting premium upon and giving judicial imprimatur to another wrong, namely conferment of a right upon certain persons who are not entitled to it. Relevant portion from the case of Ashok Kumar Pandey (supra) is reproduced as under:

�14. ����We hasten to add that even if we had found that they were entitled to such an opportunity and failure on the part of the Adhikari to provide them with the same made the order under challenge bad, we would not have been justified in quashing the same for that would have amounted to putting premium upon and giving judicial imprimatur to another wrong, namely, conferment of a right upon certain persons who were not entitled to it. To put in differently, powers in writ jurisdiction should not be exercised to set aside one illegal order to restore another illegal order.''

This principle has been followed in other judgments reported in [(1991) 1 UPLBEC 646], Committee of Management, Shri Krishna Inter College, Niwari District Ghaziabad and another v. District Inspector of Schools, Ghaziabad and others, [(1992) 2 All CJ 287 and 1988 UPLBEC 739], Shree Krishna Jotish Pathshala Kanya Inter College v. District Judge, Pilibhit and others.

In the case of A.M. Allison (supra), Hon''ble Supreme Court held that the proceedings by way of certiorari under Article 226 of the Constitution of India are ''not of course''. In appropriate case, the High Court may refuse to interfere. Relevant portion from the judgment of A.M. Allison (supra) is reproduced as under:

�(17)���..Proceedings by way of certiorari are ''not of course'', (vide Halsbury''s Laws of England'', Hailsham Edition, Vol. 9, paras 1480 and 1481, pp.877878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in applications under Art. 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. We are of opinion that, having regard to the merits which have been concurrently found in favour of the respondents both by the Deputy Commissioner, Sibsagar, and the High Court, we should decline to interfere.�

A Division Bench of this Court in the case of Om Prakash (supra) held that in case substantial justice has been done between the parties and interference under Art. 226 of the Constitution of India may amount to restoration of an illegal order, then the Court may decline to exercise the power of judicial review conferred by Art. 226 of the Constitution of India.

Similar proposition of law has been affirmed in the case of Bux Singh (supra).

A Constitution Bench of the Supreme Court in a case reported in AIR 1964 SC 1419, Thansingh Nathmal v. The Superintendent of Taxes, Dhubri and others, while considering the power of judicial review, its limit, scope and applicability, held as under:

�(7)���.The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations.�

In AIR (sic) SC 2979, Common Cause, a Registered Society v. Union of India and others, their Lordships of the Apex Court have reiterated the aforesaid principle with the observations that the power under Art. 226 of the Constitution of India is to be exercised by applying cardinal principle of �selfimposed restriction�. (para 62)

In the case of State of U.P. and another v. Johri Mal, reported in AIR 2004 SC 3800, while dealing with the power of judicial review, their Lordships have held that the Court may not exercise its power unless the public law element is involved. The exercise of administrative authority should not be sued like the appellate power. It has been further held by the Apex Court that mere wrong or illegal decision shall not be enough to attract the power of judicial review. Unless a decision causes miscarriage of justice, the Court should not ordinarily interfere with such decision.

In a famous treatise �Judial Review of Administrative Action� by de Smith''s, revised by J.M. Evans, while considering the scope of judicial review, the learned author observed that the scope of judicial review may be conditioned by a variety of factors and while doing so, the Court may take into consideration as to whether judicial intervention shall be in public interest or not. To reproduce relevant portion:

�The scope of review may be conditioned by a variety of factors; the wording of the discretionary power, the subject matter to which it is related, the character of the authority to which it is entrusted, the purpose for which it is conferred, the particular circumstances in which it has in fact been exercised, the materials available to the Court and, in the last analysis, whether a Court is of the opinion that judicial intervention would be in the public interest.�

Learned author further proceeded to observe as under:

�Finally, a Court may explain its unwillingness to review for error of law an inference drawn by an administrative tribunal from primary facts to a statutory standard when no uniquely correct answer is indicated by saying that the matter is one of fact, degree or opinion. Discretion, in other words, may be conferred implicitly as well as expressly.�

Sir William Wade in his famous book �Administrative Law�, Ninth Edition, has observed that the writ of certiorari is discretionary remedy and in appropriate case, the Court may be right to refuse the exercise of power under prerogative writ. Being discretionary remedy, refusal by Court to exercise such power in appropriate case keeping in view the related facts and circumstances shall not be improper.

Learned author (supra) has also while considering the grounds for refusal of relief under judicial review observed that an applicant may lose his claim to relief because his own conduct has been unmeritorious or unreasonable (page 701, Administrative Law, IXth Edition).

Learned author further proceeded to observe as under:

�The most active remedies of administrative law declaration, injunction, certiorari, prohibition, mandamus are discretionary and the court may therefore withhold them if it thinks fit. In other words, the court may find some act to be unlawful but may nevertheless decline to intervene.�

It is settled law that even an illegal order in appropriate case may not call for interference by this Court under Art. 226 of the Constitution of India, in case substantial justice has been done or interference with the order shall not be in public interest.

In the present case, removal of opposite party No.4 under the garb of Rule 23(b) of the Rules of the Society, which relates to reduction of term coupled with the fact that the decision taken relating to removal of opposite party No.4 or alleged reduction of term was not in the agenda of the meeting dated 27.4.2007, which was held in utter disregard to direction issued by the President of the Society, seems to be per se illegal and beyond the competence or jurisdiction. Hence, so far as the finding recorded by the Deputy Registrar with regard to validity of meeting dated 27.4.2007 is concerned it does not seem to suffer from any impropriety or illegality.

Whether power should have been exercised under Section 25 of the Societies Registration Act or Section 24 is a different issue. In any case, if the impugned order passed by the Deputy Registrar is rescinded, it shall amount to put the seal of High Court over the illegal action of certain members of the Society through the alleged meeting dated 24th April, 2007.

In view of the discussions, made hereinabove, since the removal of opposite party No.4 from the office of the President of the Society has been held to be illegal, it shall not be appropriate to exercise the extraordinary jurisdiction of Art. 226 of the Constitution of India. Any interference with the impugned order shall amount to restoration of the illegal and arbitrary action, of a group of members of the Society. Hence, no finding requires relating to applicability of Section 24 or 25 of the Societies Registration act to resolve the controversy. For any grievance, the petitioner has got an option to file a regular suit. In case any suit is filed, the Court of competent jurisdiction may proceed in accordance with law.

The writ petition is dismissed in limine. Costs made easy.

(Petition dismissed)