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Judgment
S.S. Chauhan, J.—Since the common question of law and dispute are involved in these two writ petitions they are connected, heard and disposed of by a common judgment. In Writ Petition No. 3749 (M/S) of 2009 the order of the Registrar dated 10.6.2009 has been challenged, whereas in Writ Petition No. 2086 (M/S) of 2009 the orders of the Deputy Registrar dated 28.3.2009 and 4.4.2009 have been challenged.
The facts, in brief, leading to the present dispute are that the Oudh Gymkhana Club happens to be a registered society under the Societies Registration Act, 1860 (hereinafter referred to as the ''Act'') and is a Club, which has been formed pursuant to a Memorandum of Association established on 12.5.1933. The Club has been running under the aegis of the committee of management. The term of the committee of management starts from Ist April to 31st March for a period of two years. The last elections for the committee of management were held on 25.3.2007. After the elections a dispute was raised in regard to the office of the Honorary Secretary and Treasurer S.C. Kapoor and C.P. Kackar respectively. The dispute was referred to the prescribed authority and the prescribed authority vide order dated 9.3.2009 declared the election of C.P. Kackar, which was held on 25.3.2007, as valid. The election of the committee of management was to be held up till 25.3.2009 as the term of the committee of management was going to expire on 24.3.2009 as under the bye laws the term of the committee of management is of two years. On 28.3.2009 the Deputy Registrar passed an order holding the committee of management to be time barred. Thereafter, the elections were notified by the Deputy Registrar u/s 25(2) of the Act on 28.5.2009. The said order has been challenged by way of amendment application in Writ Petition No. 2086 (M/S) of 2009, which has been allowed on 28.7.2009. The aforesaid Writ Petition No. 2086 (M/S) of 2009 was pending for adjudication in this Court, in which counter and rejoinder affidavits have been exchanged. The Deputy Registrar issued a tentative list of members on 6.6.2009. In the meantime, a complaint was made by one Bhupendra Mittal to the Secretary to the Chief Minister on 28.1.2009. The office of the Chief Minister ordered for holding an enquiry into the matter and to submit a report to the Government vide order dated 27.5.2009. The Registrar in pursuance to the enquiry passed an order on 10.6.2009, which has been challenged in Writ Petition No. 3749 (M/S) of 2009. By means of the aforesaid order the Deputy Registrar and Daljit Singh Sial were restrained from holding elections, but Daljit Singh Sial again started the process for holding the election. When Daljit Singh Sial proceeded to hold the election, a complaint was made by Rakesh Kumar Gupta, petitioner of Writ Petition No. 3749 (M/S) of 2009 on 17.6.2009, wherein it was stated that no meeting was held on 20.3.2009 as alleged by Daljit Singh Sial and the entire proceedings were forged proceedings. On this complaint, the Registrar passed an order for holding an enquiry and appointed the Deputy Registrar, Meerut for holding an enquiry into the matter and to submit his report. The Deputy Registrar after holding the enquiry submitted his report on 25.6.2009 stating therein that no such meeting was held on 20.3.2009 and neither there was circulation of any agenda. It was also found on the basis of enquiry that the register was not made available to him and was stated to be in the possession of C.P. Kackar, but C.P. Kackar has stated that he is having no record with him. It was also found that the agenda was circulated by telephone. The Registrar after receiving this report restrained Daljit Singh Sial from holding any election vide order dated 10.6.2009, but Daljit Singh Sial allegedly proceeded to hold the election on 19.7.2009 and sent the election proceedings for approval to the Registrar through Speed Post, which was received in the office of the Registrar on 21.7.2009. The Registrar taking cognizance of the matter refused to register the list as provided u/s 4 of the Act. The Registrar was of the view that once the restraint order was passed against Daljit Singh Sial he was not authorized to hold any election and, therefore, the election held by him is invalid.
Submission of learned Counsel for the petitioner of Writ Petition No. 2086 (M/S) of 2009 is that the proceedings for holding the election have been initiated on 20.3.2009 and the outgoing committee of management on the said date had not become time barred and if it had not become time barred, then the process initiated by the committee of management to hold the election cannot be faulted in any manner. He has further submitted that the Deputy Registrar was having no right or authority to declare the committee of management to be time barred vide order dated 28.3.2009. It is submitted that an election committee was appointed after the initial meeting on 20.3.2009 and the election committee proceeded with the election and circulated the agenda and finalized the voter list and thereafter the election has been held. He has also submitted that u/s 25(2) of the Act the Deputy Registrar cannot proceed unless and until he calls meeting of the general body as provided u/s 25(2) of the Act and in the present case since no meeting of the general body has been called for by the Deputy Registrar, the right to hold the election does not vest with the Deputy Registrar. He has also emphasized that literal interpretation has to be adopted to Section 25(2) and Sub-section(3) of the Act.
Sri R.K. Sinha, learned Counsel for the opposite party No. 3 has submitted that the election held by Daljit Singh Sial was a farce and in fact the proceedings were manufactured and manipulated by him and is altogether a forged and frivolous election on which no reliance can be placed. He has further submitted that from the own showing of the petitioner of Writ Petition No. 2086(M/S) of 2009 no such case was put forward in para 12 of the writ petition and it has been improved by him by way of amendment application. In reply to para 12 of the writ petition, it has been stated that the term of the committee of management has come to an end on 25.3.2009 and the said committee of management cannot hold the elections of the new committee of management. It has further been averred that notice, which is alleged to have been issued on 20.3.2009 for holding the fresh election has been issued by Daljit Singh Sial, whereas as per the bye-laws it is either the Honorary Secretary or the Joint Secretary, who can act as Executive Officer of the society and only he can issue notice for holding the elections. It has also been stated that a decision for holding the fresh election has to be taken by the committee of management in a meeting called for that purpose and the holding of the meeting by the committee of management has been specifically denied by stating that no resolution has been passed by the committee of management to hold the fresh election and, therefore, the notice dated 20.3.2009, which is alleged to have been issued by Daljit Singh Sial, is without any basis and no fresh election can be held on the basis of the same. He further submits that Article XV of the Memorandum of Association provides that an election committee must be appointed by the managing committee for holding the elections, but in the present case the managing committee has not appointed any election committee for holding the elections. The reply given in para 8 of the rejoinder affidavit does not contain any such averment and allegation, which has been made by way of amendment application bringing on record certain documents to prove the constitution of the election committee. It is also submitted that these documents have been fabricated at a later point of time. Had there been any material existing, then the reply would have come in para 8 of the rejoinder affidavit. It has also been submitted that it is the Secretary and the Joint Secretary who can file writ petition and the President is not authorized to file writ petition according to Article XV of the Memorandum of Association. No 4 resolution was passed by the committee of management to file writ petition and hence the entire election process is forged and fabricated on which no reliance can be placed and the Deputy Registrar be directed to hold the election in accordance with law looking to the fact that no resolution has been brought on record by the committee of management to appoint the election committee and neither any agenda has been placed on record to hold the meeting.
Sri Ravi Singh, learned Counsel for the petitioner of Writ Petition No. 3749(M/S) of 2009 has submitted that the order of the Registrar is without jurisdiction and further the Registrar was having no right under law to stay the operation of the order passed by the Deputy Registrar dated 28.5.2009 and the election programme fixed on 19.7.2009 could not have been put at naught by the Registrar. He has further submitted that the jurisdiction of the Registrar is altogether different in view of the notifications issued by the State Government from time to time. In support of his contention, he has placed reliance upon the judgment of this Court rendered in the case of Fahim Ahmad and Anr. v. The State of Uttra Pradesh and Ors. 2006 (24) LCD 1078, wherein it has been held that the Registrar has got no jurisdiction to review the order passed by the Deputy Registrar and cannot exercise the power of appellate or revisional authority.
Sri M.B. Singh, learned Counsel appearing for the Registrar on the basis of record has submitted that no elections were held as claimed by Daljit Singh Sial, but in fact a fraud was played by him in preparing the forged documents in regard to election. The Deputy Registrar, Meerut upon enquiry found that no agenda has been circulated for holding the meeting on 20.3.2009 and neither any meeting has been held on 20.3.2009. Therefore, issuance of election programme at the behest of the outgoing committee of management was altogether a fraudulent exercise. The Registrar on the basis of the report submitted by the Deputy Registrar, Meerut passed an order on 10.6.2009 restraining Daljit Singh Sial from holding any election, but in spite of that elections were held on 19.7.2009 and the Registrar has refused to register the list submitted by Daljit Singh Sial on the basis of the elections held on 19.7.2009 on 23.7.2009. He has further submitted that the parties are at liberty to challenge the aforesaid decision of the Registrar, but none of the parties in the present case have challenged the aforesaid order dated 23.7.2009 and as such the claim and the counter claim set up by the respective parties are without any basis and the writ petitions are liable to be dismissed on that score alone as no cause of action survives in the present petitions. He has also submitted that when the team appointed by the Registrar went to the Club for making an enquiry, then it was found that the Club was closed on 12th, 14th, 15th, 16th, 17th and 18th of July, 2009 and every time it was told by the Guard deputed on duty that the office is closed and it may probably open on the next date and ultimately on 18.7.2009 it was told that probably it will open on 20.7.2009, but in the meantime the alleged elections were held on 19.7.2009 by Daljit Singh Sial. I have heard Sri Anil Tewari, Senior advocate, assisted by Sri Shishir Chandra, Sri R.K. Sinha, learned Counsel for the opposite party No. 3, Sri Ravi Singh as well as Sri M.B. Singh.
When the writ petition was taken up for hearing an application for amendment has been moved for making certain amendment in Writ Petition No. 2086 (M/S) of 2009. The said application was allowed on the same day with the direction to incorporate the amendment during the course of the day. Through the amended writ petition, the order dated 28.5.2009 contained in Annexure No. 7-D of the writ petition has been challenged on various grounds.
One of the arguments raised on behalf of the petition of Writ Petition No. 2086 (M/S) of 2009 was that there is no counter affidavit to the amended portion of the writ petition and no rejoinder affidavit has been filed to the counter affidavit filed in Writ Petition No. 3749 (M/S) of 2009. Both the writ petitions are connected and the inter se pleadings of the parties are in the nature of reply of the arguments sought to be advanced by way of preliminary objection in Writ Petition No. 3749 (M/S) of 2009 and by way of amendment in Writ Petition No. 2086 (M/S) of 2009. If the inter se pleadings of the parties are taken into consideration and the record contained therein is considered, then the pleadings of one party in one of the writ petition can be treated as a defence in the other writ petition. The technical objection sought to be raised by Sri Anil Tewari in Writ Petition No. 2086 (M/S) of 20029 seems to be a device for deferring the hearing. The earnest effort on the part of Sri Anil Tewari has to be considered in the aforesaid perspective. Whatever documents have been filed by him by way of amendment application in Writ Petition No. 2086 (M/S) of 2009 and by way of preliminary objection in Writ Petition No. 3749 (M/S) of 2009 are more or less the same documents and for which reply has already been given by Sri R.K. Sinha in Writ Petition No. 2086 (M/S) of 2009. The initial case pleaded in Writ Petition No. 2086 (M/S) of 2009 is sought to be improved upon by way of amendment application.
The argument of counsel for opposite party No. 3, Sri R.K. Sinha to the effect that certain documents have been cooked in and fraudulently prepared for the purposes of the case and they were not filed initially in support of the writ petition and even after filing of the counter affidavit. The conduct of the petitioner in holding the elections as doubted by opposite party No. 3 has to be considered with reference to the evidence on record.
The petitioner has also filed written arguments and in the aforesaid written arguments, it has been emphasized that literal interpretation has to be adopted by Section 25(2) of the Act and the term of the committee of management has not come to an end and prior to the end of the term election process has been initiated and, therefore, it shall be deemed to be an election held by the outgoing committee of management. Therefore, the order dated 28.5.2009 passed by the Deputy Registrar was in gross violation of principles of natural justice as no opportunity was given to them.
It has also been pleaded that the order dated 28.5.2009 is also without jurisdiction as it has been passed on the complaint of opposite party No. 3, Sri Bhupendra Mittal without giving them any opportunity.
The elections for the committee of management (executive committee of Oudh Gymkhana Club) were held on 25.3.2007 for a term of two years. A dispute was raised with regard to election of two office bearers, namely, Honorary Secretary and the Honorary Treasurer. The main ground was that if a person is elected third time, then he is required to obtain 2/3rd majority votes according to the bye laws of the Club to get his election validated. So opposite party No. 3, Sri Bhupendra Mittal made a complaint to the Deputy Registrar and the Deputy Registrar referred the matter to the prescribed authority. The prescribed authority vide order dated 9.3.2009 decided the dispute and held that there was no such provision in the bye laws as pleaded by the opposite party No. 3, hence proceeded to dismiss the reference with a direction that the elections be held by the society in accordance with the bye laws. In pursuance to the aforesaid order, it is alleged that the election process was undertaken and on 20.3.2009 an election notice of the managing committee of the Club has been issued.
The argument is that the term of the committee of management was going to expire on 24.3.2009 and, therefore, the process has been initiated for holding the election before the expiry of the term.
The argument of learned Counsel for the petitioner needs appreciation only to the extent that whether a fair, impartial and transparent election has been held as required under law or that it was a sheer paper work of the petitioner to claim validity of the election on the basis of notice issued by him. The notice, which has been issued on 20.3.2009 (Annexure No. 5 to the writ petition) goes to indicate that it is a notice issued by Daljit Singh Sial in his personal capacity as President. It has not been mentioned in the notice that there has been any meeting of the managing committee to hold the election. The facts emanating from the record also go to indicate that the managing committee was declared time barred vide order dated 28.3.2009 and the said order has been subjected to challenge in Writ Petition No. 2086 (M/S) of 2009. In the eantime, a complaint was moved by Sri Bhupendra Mittal to the Secretary to the Chief Minister on 28.1.2009 alleging mass bungling, embezzlement and mismanagement of the Club at a high level. The office of the Chief Minister asked the Registrar to make an enquiry and to submit his report to the Government vide order dated 27.5.2009. In the meantime, the Deputy Registrar proceeded to notify the elections on 28.5.2009 and after issuance of the election notification/programme a tentative list was finalized on 6.6.2009. The Registrar in pursuance to the enquiry passed an order on 10.6.2009 staying the operation of the order passed by the Deputy Registrar dated 28.5.2009, which has been challenged in Writ Petition No. 3749 (M/S) of 2009. By means of the aforesaid order the Deputy Registrar as well as Sri Daljit Singh Sial were restrained from holding elections, but in spite of that Daljit Singh Sial again started the process for holding the election. When Daljit Singh Sial proceeded to hold the election, a complaint was made by Rakesh Kumar Gupta, petitioner of Writ Petition No. 3749 (M/S) of 2009, wherein it was stated that no meeting was held on 20.3.2009 as alleged by Daljit Singh Sial and the entire proceedings were forged proceedings. On this complaint, the Registrar passed an order for holding an enquiry and appointed the Deputy Registrar, Meerut for holding an enquiry into the matter and to submit his report. The Deputy Registrar after holding the enquiry submitted his report on 25.6.2009 stating therein that no agenda whatsoever was circulated for holding the meeting on 20.3.2009 and neither any meeting was held on 20.3.2009 and, therefore, the issuance of the election programme at the behest of the outgoing committee of management was altogether a concocted story and was an attempt to grab the office of the committee of management by fraudulent means. When the Registrar came to know the aforesaid fact through the report submitted by the Deputy Registrar, Meerut, passed an order on 10.6.2009 restraining Daljit Singh Sial from holding any election, but in spite of that elections were held on 19.7.2009. The Registrar in the aforesaid circumstances refused to recognize the election of 19.7.2009 at the behest of Daljit Singh Sial. It is to be noted that when the team appointed by the Registrar went to the Club for making an enquiry, then the team found that the Club was closed on 12th, 14th, 15th, 16th, 17th and 18th of July, 2009 and every time the Guard deputed on duty told that the office is closed and probably it will open on the next day and finally on 18.7.2009 he told the enquiry team that probably it will open on 20.7.2009. The committee found that there is no such activity nor anything of like nature in the name of election going to be held in the premises of the Club. The most astonishing feature is that according to the own showing of the petitioner the election result was notified on 19.7.2009. The Registrar passed an order on 26.6.2009 to all the concerned authorities that till the enquiry report is submitted by the Deputy Registrar, Meerut no further decision shall be taken in the matter. The holding of the election was challenged before the Registrar by way of complaint by two members, namely, Vice- President and one member of the Club. The declaration of the result by the petitioner filed along with the application for dismissal of Writ Petition No. 3749 (M/S) of 2009 goes to indicate that the elections for the managing committee of the Club for the term 2009-2011 were notified in accordance with the election schedule dated 26.5.2009 and in pursuance to which various nominations were to be filed by 8.7.2009 and withdrawal of the nominations was scheduled for 14.7.2009 and the election was scheduled to be held on 19.7.2009. It is evident from the letter of Raj Kumar Chandiramani annexed as Annexure No. A-10 to the application for dismissal of Writ Petition No. 3749 (M/S) of 2009 that some of the candidates withdrew their nominations on 13.7.2009 and 14.7.2009 and as such an uncontested election was finalized in which Sri Daljit Singh Sial was elected as President. The election result was notified on 19.7.2009 and it was published in the newspaper as well. This exercise undertaken by Sri Daljit Singh Sial in regard to holding of the election goes to indicate that in fact there was no election and it was an uncontested election and this probably seems that it was an outcome on account of there being restraint order by the Registrar darted 10.6.2009 and that the enquiry committee headed by the Deputy Registrar, Meerut was visiting the office of the Club continuously from 12th July, 2009 to 18th July, 2009. The enquiry report submitted by the Deputy Registrar, Meerut also indicated that the said meeting as alleged to have been on 20.3.2009 was not established on enquiry either from the members or from the records. The aforementioned fact also finds support from the argument of counsel for opposite party No. 3, Sri R.K. Sinha, who has specifically stated in para 14 of the counter affidavit that notice alleged to have been issued on 20.3.2009 for holding the fresh election was issued by Daljit Singh Sial, whereas according to bye laws, it is either by the Honorary Secretary or the Joint Secretary who can act as Executive Officer of the society and only he can issue notice for holding meeting of committee of management. Apart from it, it was also stated that such a decision for holding fresh election has to be taken by the committee of management in a meeting called for that purpose. It has also been mentioned clearly and categorically in paras 14 and 15 of the counter affidavit that no resolution of the committee of management has been passed for holding the fresh election and notice at the behest of Daljit Singh Sial was without any basis. It is evident from Article XV of the Memorandum of Association that an election committee must be appointed by the managing committee for holding the election and in the present case the managing committee has not appointed any election committee.
This particular averment has been replied in para 8 of the rejoinder affidavit and it has been stated that the committee will continue to hold the office till the new successors are elected and hence the meting was held on 20.3.2009 to hold the elections on 24.5.2009 for which election committee was also formed as per bye laws of the Club consisting of one Convener and six members. The election committee has been appointed by the managing committee and the elections have been notified on 24.3.2009 and the public notice annexed by the Convener was annexed as Annexure No. RA-4. The reply contained in para 8 of the rejoinder affidavit goes to indicate that there was no such document placed on record to prove that there was any meeting of the committee of management to hold the election on 24.3.2009. It is by way of amendment application the said document has been brought on record, which itself is indicative of the fact that it is an after thought document prepared for the purposes of the case on the basis of whim prevailing with the petitioner. At the time of initial argument of the case when it was specifically pointed out by the learned Counsel for the opposite party No. 3 that any improvement made by the petitioner after the arguments advanced by the counsel for the opposite party No. 3 in regard to lacking of evidence and documents can only be termed as an after thought exercise to meet the arguments. Notice issued by Daljit Singh Sial undisputedly goes to indicate that it was issued by Daljit Singh Sial in his capacity as President and the said notice does not indicate that any decision has been taken by the committee of management to hold the election, but the notice contained in Annexure No. 5 at page 41 goes to indicate that the election of the managing committee of the Club for the term 2009-2011 will be held on 24.5.2009. Had there been any meeting in regard to this, the same would have been indicated in the notice. So much so even after the objection taken by the opposite party No. 3 in the counter affidavit no proper document was filed to support the averment. Article X, Section ''B'' deals with the power of the Honorary Secretary and the Honorary Secretary has been termed as the Chief Executive Officer of the Club. In Clause (7) he has been empowered to call meeting of the General Body and of Managing Committee whenever required in accordance with the Rules. In the present case, no such meeting has been called by the Secretary and according to argument of learned Counsel for the opposite party No. 3 in fact C.P. Kackar ought to have issued notification for holding the election as the Secretary Sri S.C. Kapoor had died and, therefore, the power is vested with Sri C.P. Kackar to call the meeting and thereafter notify the elections and the President in no circumstances is entitled to notify the elections.
Article XIII, Section ''A'' also contemplates that the Annual General Meeting of the Club shall be held after the annual report and documents for the year under review are circulated to the members along with the notice of the Annual General Meeting and put up on the Notice Board at least 10 days before the Annual General Meeting. The Annual General Meeting of the Club is to be held after 21 days notice to the members of the Club. The only power conferred upon the President is to call a special general meeting of the Club, but simultaneously the said power has been conferred upon the Manging Committee as well as upon a requisition singed by not less than 1/3rd members of the Club. Except the aforesaid power, no power is conferred upon the President to call the meeting of the Managing Committee.
When the Registrar has come to the conclusion on the basis of the enquiry report submitted before him that no such meeting, as alleged, was held on 20.3.2009 and in fact it was a fraudulent act of Sri Daljit Singh Sial who tried to give colour to his illegal action by providing in the notice for holding the elections. He was also asked on 2.2.2009 to produce the records before the enquiry committee and then on 23.3.2009, but every time he failed and, therefore, an order was passed not to take any decision in regard to policy decision of the Club. The finding, therefore, to the effect that the society has become time barred, cannot be faulted in any manner as there was no initiation of process as pleaded by the petitioner in Writ Petition No. 2086 (M/S) of 2009. It is also apparent from the record that no election took place on the own pleading of the petitioner and no polling took place except that an uncontested election was declared on account of the withdrawal of certain nomination papers. It also throws volumes of doubt upon the conduct of the election in accordance with law. The Registrar, therefore, on the basis of the enquiry report came to the conclusion that neither any election has been held on 19.7.2009 nor any meeting was held on 20.3.2009 and there were serous complaints of bungling and mismanagement against Sri Daljit Singh Sial. The opposite party No. 3 as well as other members also disputed the holding of election on account of ongoing enquiry. Therefore, the petitioner was rightly restrained to proceed with the election by means of order dated 10.6.2009. Since the elections have been held in defiance of the order of the Registrar, so also they cannot be held to be a valid election and rather a nullity in the eye of law unless and until the order of the Registrar was set aside by any competent court. The Registrar after the petitioner submitted its election process u/s 4 of the Act, on finding that the elections have been held fraudulently, deceitfully and in defiance of her order, proceeded to cancel the said election. The order of the Registrar, therefore, in the facts and circumstances of the case is perfectly justified.
The argument of counsel for the petitioner that once the elections have been held, they cannot be interfered with under the writ jurisdiction and they are to be challenged before the appropriate forum as provided under the Statute i.e. before the prescribe authority. The aforesaid argument cannot find support in the present case on the basis of the fact that the elections itself were a nullity and fraudulent exercise on the part of the petitioners. The question of literal interpretation as pleaded by the petitioner for holding the election and emphasizing again and again that the Registrar is obliged to call for a meeting of the general body and since in the present case no meeting of the general body was held, therefore, the action of the Deputy Registrar cannot be said to be a legal action.
Learned Counsel for opposite party No. 3, Sri R.K. Sinha in reply to the aforesaid argument has placed reliance upon a decision of the Division Bench of this Court in the case of Harish Chandra Gupta v. Registrar, Firms, Societies and Chits, U.P., Lucknow and Ors. 1991 SCD 132. In para 7 of the aforesaid judgment the Division Bench held as under:
For calling meeting of the general body the Registrar will have to fix a date for the meeting and intimate that date to the members of the society. Without this calling of meeting will not be complete. For issuing notice to the members, the Registrar must have a valid list of voters or members of the Society. Without such a list it will not be possible for him to give intimation of the date of meeting fixed by him. It is apparent that if any dispute arises regarding the membership of the society it will have to be decided before the notices are issued. Thus the function of finalizing the list is implicit in the function of calling the meeting of the general body. From this it flows that the nominee of the Registrar not competent to take any decision regarding the list of members, if any dispute in that regard arises. In fact from the scheme of Section 25, it appears that the settlement of dispute of that nature must precede the calling of the meeting. Accordingly, the decision of the Tahsildar to hold election on the basis of the list dated July 18, 1986, about which there was dispute, cannot be sustained. For the same reason the Deputy Registrar''s order dated September 4, 1989, Annexure 11, whereby he required the Tahsildar to decide dispute regarding membership also cannot be sustained. The election was held on September 14, 1989 without there being a valid and finalized list of members. The said election cannot, therefore, be upheld.
From the aforesaid proposition of law laid down by this Court, it is clear that if any dispute arises regarding the membership of the society, then it has to be decided before the notices are issued. The function of finalising the list is implicit in the function of calling the meeting of the general body. So certain formalities are to be carried out before calling of meeting of the general body, which are inherent and implied and such power is implicit in the functioning of calling the meeting of the general body. So the argument of counsel for the petitioner of Writ Petition No. 2086 (M/S) of 2009 for adopting the literal interpretation fails on this score.
The reliance placed by the learned Counsel for the petitioner of Writ Petition No. 2086 (M/S) of 2009 upon the cases of Basant Prasad Srivastava and Anr. v. State of U.P. and Ors. (1993) 2 UPLBEC 1333 , Umesh Shivappa Ambi and Others Vs. Angadi Shekara Basappa and Others, , Rama Kant and Anr. v. Assistant Registrar, Firms, Societies and Chit Funds, U.P., Varanasi and 31 Ors. (2005) 2 UPLBEC 1904 and Committee of Management, Vidyawati Higher Secondary School, Shahpur, Sarain, Azamgarh and Anr. v. Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh and Ors. (2005) 3 UPLBEC 2410, are on the question that after the election the party should be relegated to the Election Tribunal. In view of the finding recorded as aforesaid, the said proposition of law will not be applicable in the case of the petitioner as the election itself was not found to be a valid election.
The reliance placed by the learned Counsel for the petitioner of Writ Petition No. 2086 (M/S) of 2009 upon the cases of Arun Agarwal v. Nagreeka Exports, (2002) 10 SCC 101 Manubhai J. Patel and Anr. v. Bank of Baroda and Ors. reported in, (2000) 10 SCC 253 T.K. Lathika Vs. Seth Karsandas Jamnadas, and Special Appeal No. 357 of 2007, Moti Lal Memorial Society, Moti Mahal v. Dr. Ram Krishna and Anr., are on the proposition that the preliminary objection should be decided at the first instance and thereafter the hearing should proceed in the case if the objection goes to the root of the matter. In the present case, the preliminary objection that once the election was held, the petition under Article 226 of the Constitution of India in extraordinary jurisdiction would not be maintainable, cannot be sustained as indicated earlier that the election has not been held in accordance with law nor it can be termed as a valid election and rather it was in defiance of the order of the Registrar dated 10.6.2009.
The next contention of learned Counsel for the petitioner of Writ Petition No. 2086 (M/S) of 2009 is in regard to the literal interpretation to be adopted while construing the provisions of Section 25(2) and Sub-section (3) of the Act. In support of his contention he has placed reliance upon the following cases :
The State of Bihar Vs. Sir Kameshwar Singh, The New Piece Goods Bazaar Co. Ltd., Bombay v. Commissioner of Income Tax, Bombay AIR 1950 SC 165 , Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, The Commissioner of Income Tax, West Bengal 1, Calcutta Vs. Vegetables Products Ltd., Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others, and Chandra Kishore Jha Vs. Mahavir Prasad and Others,
The question of literal interpretation as argued by the learned Counsel for the petitioner stands answered by a Division Bench of this Court in the case of Harish Chandra Gupta (supra) and, therefore, the effort made by the petitioner to prove that the general body meeting was not called by the Registrar and, therefore, the entire exercise will fail, deserves no further consideration. Reliance placed by the learned Counsel for the petitioner on the case of Mool Chand Yadav and Anr. v. Raza Buland Sugar Co. Ltd., Rampur and Ors. 1983 (1) LCD 109, also does not come to the rescue of the petitioner as the question of grant of interim order during the pendency of the appeal does not arise when the matter is being finally adjudicated.
The reliance placed by the learned Counsel for the petitioner of Writ Petition No. 2086 (M/S) of 2009 upon the cases of Fahim Ahmad (supra), Umesh Chandra and Anr. v. Mahila Vidyalaya Society, Aminabad, Lucknow and Ors. 2006 (24) LCD 1439 and Literacy House Staff Welfare Association and Anr. v. Registrar, Firms, Societies and Chits, U.P. and Ors. 2006 (24) LCD 1439 does not deal with the situation enumerated in this case.
In Umesh Chandra''s (supra) case the question was as to whether the writ petition at the behest of a person in whose favour there was no authorization of the managing committee would be maintainable. This Court came to the conclusion that such petition would not be maintainable at the behest of such person in whose favour there is no resolution of authorization. In the present case also no authorization has been placed on record to prove the authority to file the writ petition. In the aforesaid case, the nominated members and the staff raised objection, which was held to have force and it was found that the election has not been held in accordance with law and so the same was quashed and the then Secretary was appointed as Receiver to discharge the routine duties of the society till the board was constituted in accordance with law. The Receiver was also directed to constitute the board in accordance with the rules and provisions of the society within a period of three months. Therefore, the aforesaid two cases do not come to the help of the petitioner and rather they go against the petitioner.
The Fahim Ahmad''s (supra) case, which has been relied upon by the learned Counsel for the petitioner of Writ Petition No. 3749 (M/S) of 2009 to plead that the decision for extension of the term of the committee of management cannot be taken by the general body after the expiry of the term of the committee of management. He has also been pleaded that the Registrar was having no power to stay the operation of the order passed by the Deputy Registrar for holding elections. The case of the petitioner of Writ Petition No. 3749 (M/S) of 2009 is fully covered by the controversy decided in the case of Fahim Ahmad (supra), wherein in paragraph 31 of the judgment this Court held as under:
The State Government by the notification dated 20th of July, 1981, 7th of January, 1982, 31st of July, 1985, 24th of January, 1987, 6th of July, 1991 followed by another notification dated 29th of October, 1991 has delegated the work of Registrar to the Deputy Registrar or Assistant Registrar of the respective regions or districts. In view of the delegation of power by the State Government in pursuance to the power conferred by Section 21 of the Societies Registration Act, the Deputy Registrar or the Assistant Registrar of the regions or districts or as the case may be, have got power to discharge all the statutory duties provided under the Societies Registration Act. Once the State Government has delegated the power to the Deputy Registrar or the Assistant Registrar of the respective regions or the districts then the Registrar, Firms, Societies and Chits, U.P., Lucknow has got no jurisdiction to interfere with the discharge of statutory duties by the Deputy Registrar or the Assistant Registrar while proceeding with the controversy. The supervisory power vested in the Registrar does not seem to include to pass an order staying the election process or to summon the record and usurp the power of the Deputy Registrar or the Assistant Registrar. Of course, in case, it is brought into the notice of the Registrar relating to some malpractice, fraud or the corrupt practice by the Deputy Registrar, then in such situation, Registrar, Firms, Societies and Chits may transfer the proceedings to some other Deputy Registrar or the Assistant Registrar having the jurisdiction to discharge duties u/s 21 of the Societies Registration Act. Corollary to that the Registrar does not have got jurisdiction to rescind or modify the order passed by the Deputy Registrar or the Assistant Registrar while discharging the statutory duties. The Registrar does not possess the appellate power under the Act to rescind the decision taken by the Deputy Registrar or the Assistant Registrar as the case may be.
It is a settled law that the power of appeal or review or revision are the statutory powers and in the absence of any specific provision under the Act or Statute, the authorities have got no jurisdiction to exercise such powers.
Considering the finding recorded in the aforesaid case, the order of the Registrar dated 10.6.2009 staying the order of the Deputy Registrar cannot be sustained in law and is hereby quashed.
Once the Deputy Registrar has notified the election programme on 28.5.2009 the Registrar should have permitted the Deputy Registrar to hold the election in the wake of on going dispute and complaints and counter complaints in the matter and further the enquiry report submitted to him should have also compelled him to take a decision to permit the Deputy Registrar to hold the election by notifying the election programme in accordance with law rather to stall the election on account of pendency of the writ petition in this Court.
It is apparent from the record that till date the records have not been submitted before the Deputy Registrar although they have been demanded time and again for enquiry. Looking to the nature of dispute and the conduct of the petitioner of Writ Petition No. 2086 (M/S) of 2009, it is necessary to direct that the petitioner of Writ Petition No. 2086 (M/S) of 2009 may hand over the entire documents in regard to holding of election to the Deputy Registrar, who shall proceed to hold the election within a period of two months. It may be possible that a dispute may arise in regard to the membership and so in order to avoid any controversy and to rely upon an undisputed list, the Deputy Registrar will hold the elections out of the list on the basis of which elections were held on 25.3.2007 as during the continuance of the dispute it is alleged that certain new members have been enrolled regarding which serious objections were raised. The enquiry against the outgoing committee of management shall be acted upon by the opposite parties in accordance with law. Subject to above observations, Writ Petition No. 3749 (M/S) of 2009 is allowed and Writ Petition No. 2086 (M/S) of 2009 is dismissed.
There shall be no order as to costs.