Ram Kumar Sharma vs State of U.P. and Others

Rakesh Tiwari, J.—Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Diwakar Rai Sharma, Counsel for the petitioner, Sri Prabhakar Awasthi, learned Counsel for respondent Nos. 4 and 5, learned Standing counsel for respondent Nos. 1 to 3 and perused the record.

This writ petition has been filed for quashing the order dated 6.10.2007 passed by the Deputy Registrar, Firms, Society and Chits, Agra which has been appended as Annexure-26 to the writ petition as well as for quashing the minutes of the meeting dated 25.8.2007 whereby the petitioner has been removed from the post of Mantri and membership of the Society namely, Gram Vikas Samiti, Ganiyawali, Atrauli, District Aligarh.

A writ of mandamus has also been sought by the petitioner for restraining the respondents from interfering in the functioning/ working of the petitioner as Mantri/Manager of the Society namely, Gram Vikas Samiti Ganiyawali, Atrauli, District Aligarh.

It is culled out from the record that the petitioner claims to be the Mantri/Manager of the society, Gram Vikas Samiti Ganiyawali, Tehsil Atrauli, District Aligarh which is registered under the Society Registration Act, 1860. The society runs an educational institution known as Janta Junior High School, Ganiyawali, Aligarh which is a recognized and an aided institution by the State Government.

Respondent No. 5 filed Civil Misc. Writ Petition No. 57362 of 2005 and sought a writ in the nature of mandamus commanding the Deputy Registrar Firms, Society and Chits, Agra to determine the electoral college of the society known as Gram Vikas Samiti Ganiyawali, Aligarh and on the basis of such determined electoral college hold election of the Managing Committee in accordance with law. The writ petition was thereafter disposed of by this Court vide order dated 6.3.2006 directing the Deputy Registrar Firm, Society and Chits, Agra to determine electoral college of the institution in question with the help of District Basic Education Officer who had been appointed as authorized controller.

Pursuant to the aforesaid order dated 6.3.2006 passed in that writ petition list of 25 members of general body was finalized by the Deputy Registrar/Election Officer and subsequently elections of the society were held on 24.8.2006 in which the petitioner claims to have been elected as Mantri along with Sri Rajesh Kumar Sharma is said to have been elected as Pradhan Sri Banwari Lal Sharma as Up-Pradhan and Champa Lal Sharma was appointed as Up-Mantri, Yadvendra Kumar Mudgal as Treasurer and Roop Kishor Sharma, Suresh Chandra Sharma, Veer Deo Sharma, Ram Khelari Sharma, Ramji Lal Sharma and Lakhan Kumar Sharma were elected as executive members of the society.

One Vikramaditya Sharma who claimed himself to be member of the general body of the society submitted an application before the Deputy Registrar, Firm, Society and Chits/ Election Officer, Agra requesting for a clarification of Article 32 of the bye-laws of the society as to whether the Mantri of the society can also function as Manager of the institution run by the society under the aforesaid bye-laws.

It also appears that a notice dated 11.9.2006 was issued by Up-Mantri of the society in respect of a meeting said to have been held on 25.9.2006 in which Veer Deo Sharma is alleged to have been elected as Manager of the institution.

The petitioner claims that he was elected as Mantri the society and his signatures were attested by District Basic Education Officer on 13.9.2006 to function as Manager of the institution.

Sri Veer Deo Sharma filed Civil Misc. Writ Petition No. 53415 of 2006 challenging the order dated 13.9.2006 passed by the District Basic Education Officer, Aligarh whereby the signatures of the petitioner were attested for functioning as Manager of Junior High School run by the society. On 25.9.2006 the Court had granted six weeks'' time for filing counter affidavit.

It is alleged that illegal elections were held on 25.9.2006 in which Sri Veer Deo Sharma was elected as Manager of the college. As the signatures of the petitioner were attested by District Basic Education Officer on 13.9.2006, the consequential action or the natural consequence was to handover the charge of the Manager of the institution to the petitioner.

Aggrieved Sri Veer Deo Sharma filed another Civil Misc. Writ Petition No. 56228 of 2006 in which the operation of the order dated 29.9.2006 by which the charge of the Manager of the institution was handed over to the petitioner was stayed by the High Court. After the petitioner had taken charge as the Mantri of the society he had circulated an agenda on 28.10.2006 calling upon a meeting on 12.11.2006. Subsequently, on 15.2.2007 a meeting was called for 3.3.2007 and agenda/notice in this regard was issued to all the members of general body as well as proposed members who wanted to join the society i.e. in all to 41 persons. An agenda was circulated by the petitioner to all the members of the general body for consideration of issue of new members.

When the copy of the agenda dated 11.8.2007 was served, 7 members of executive body i.e. Surendra Deo Sharma, Champa Lal Sharma, Banwari Lal Sharma, Ram Khelari Sharma, Suresh Chandra Sharma, Yadvendra Kumar Mudgal and Sri Veer Deo Sharma served a letter dated 21.8.2007 referring to an earlier letter dated 17.8.2007 inter-alia that Mantri of the society had no jurisdiction or power to call a meeting on 26.8.2007.

It appears that a notice/agenda dated 23.8.2007 was sent by 7 same members of the society who had earlier sent a letter dated 21.8.2007 to the petitioner calling upon an emergent meeting on 25.8.2007. The meeting took place on 26.8.2007 and new 10 members were also given the membership of the society.

On the basis of the meeting dated 25.8.2007 a suit was filed Champa Lal Sharma alleging himself to be Secretary against the petitioner seeking a relief that he be declared as duly elected Secretary of the society known as a Gram Vikas Samiti Ganiyawali, Aligarh and further sought a decree of permanent prohibitory injunction against the petitioner from interfering in the functioning of the society. The Civil Judge (SD), Atrauli, District Aligarh vide order dated 5.9.2007 had granted an interim order restraining the petitioner from interfering in the working and management of the society.

It is submitted by Sri Ashok Khare, learned Senior Counsel for the petitioner that the three ingredients require for consideration in grant of temporary injunction were not fulfilled as essential neither there was prima facie case because the minutes of the meeting/decision was sent before the Sub-Registrar for its approval and the same was illegally approved on 8.10.2007, hence at the time of hearing the injunction application there was no prima facie case of Champa Lal Sharma nor balance of convenience was in his favour nor any irreparable loss was being caused to him. There was no occasion for granting ex-parte injunction in favour of Champa Lal Sharma against the petitioner, hence the order itself is bad in law.

The proceedings of alleged meeting dated 25.8.2007 are stated to have been submitted before the Deputy Registrar Firms Society and Chits, Agra for his approval, in pursuance thereof he issued notices dated 21.9.2007 to the petitioner. It is also submitted that the petitioner has annexed the alleged proceedings of the meeting dated 25.8.2007 whereby the petitioner was removed from the post of Mantri as well as membership of the society.

Contention of Sri Ashok Khare, learned Senior Counsel for the petitioner is that the impugned order dated 8.10.2007 passed by the Deputy Registrar, Firms Society and Chits, Agra is illegal and without jurisdiction and in the circumstances, he ought to have referred the matter to the Prescribed Authority u/s 25(1) of the Societies Registration Act, 1860. He has placed reliance upon judgment dated 6.3.2006 passed by this Court in Civil Misc. Writ Petition No. 57362 of 2005, Surendra Deo Sharma v. State of U.P. and Ors. which has been appended as Annexure-2 to the writ petition.

The relevant portion of the judgment dated 6.3.2006 is as under:

In these circumstances and in this background Deputy Registrar, Firms, Societies and Chits, Aligarh is directed to determine the electoral college of the institution in question after taking due assistance from the Deputy Basic Education Officer, Aligarh who has been appointed as Authorized Controller in the institution and for determining the electoral college a tentative list be published and thereafter objections be invited to the same and thereafter after finalizing the electoral college election of the Committee of Management shall be held by the Deputy Registrar, Firms, Societies and Chits, Aligarh and Sub-Deputy Basic Education Officer, Aligarh then thereafter Committee of Management so elected be handed over the charge. Needless to say entire exercise be concluded within three months from the date of presentation of certified copy of this order.

It is emphasized that it was the Deputy Registrar Firms, Societies and Chits, Agra who was holding the election. The agenda of the meeting held by Champa Lal Sharma Up-Mantri has also been appended as Annexure-22 to the writ petition. The attention of the Court has been drawn to item Nos. 2,3 and 4 of the aforesaid agenda which has been signed by only 7 members who are said to be the office-bearers but no office bearer had been authorized to hold the aforesaid meeting. He has then referred to Annexure-23 to the writ petition wherein the aforesaid agenda has been considered in the meeting dated 25.8.2007 which is as under:

vkt fnukad 25-8-2007 dks lk;a 5 cts tw0 gk0 Ldwy xfu;koyh ds izkax.k es ,ts.Mk fnukad 23-08-2007 ds vuqlkj xzke fodkl lfefr xfu;koyh dh vkikrdkyhu cSBd iz/kku Jh jkts''k dqekj ''kekZ dh mifLFkr u gksus ij iz/kku Jh cuokjh yky ''kekZ dh v/;{krk esa izkjEHk gqbZ A

fo"k;%& ea=h }kjk dh xbZ voS/k dk;Zokgh;ksa ds lEcU/k es ea=h }kjk dh xbZ voS/k dk;Zokgh;ks ij izdk''k vko;''d gksus ij ea=h ds fo:) mfpr dk;Zokgh A

loZ izFke bZ''k oUnuk ds mijkUr cSBd dh dk;Zokgh izkjEHk dh x;h A ea=h ds euk djus ij xr cSBd dh dk;Zokgh mieU=h Jh pEikyky ''kekZ us idj lqukbZ rFkk loZlEefr ls xr dk;Zokgh dh iqf"V dh xbZ] rRi''pkr ,sts.M+k ds fcUnq �3� o fcUnq �4� ij ppkZ dh x;h A

v/;{k dh vuqefr ls Jh lqjsUnz nso ''kekZ us izLrko] j[kk fd ea=h vius in dk nq:Ik;ksx dj jgs gS A D;ksfd eU=h in izkIr gksus ds rqjUr ckn gh ch0,l0,0 egksn; us fdlh rjg xqejkg djds vius gLrk{kj izcU/k ds :Ik esa izekf.kr djk fy;s] ftldk okn ek0 mPp U;k;ky; bykgkckn es yfEcr gS vkSj ea=h ds bl voS/k dk;Z ls fo|ky; dks viw.kZuh; {kfr gks jgh gS A vkSj ea=h }kjk ,ts.Mk o cSBds dkxtksa es n''kkZdj u;s QthZ lnL;ks dh la[;k ciwoZ esa Hkh ea=h lfefr ds QthZ lnL; n''kkZ pqds gS tks U;k;ky; }kjk vekU; fd;s x;s Fks] ,oe lu 2002 esa v/;kidks dh fu;qfDr ij U;k;ky; ls viuh futh LokFkZ ds o''khHkwr gksdj LFkxu vkns''k djk tk;s Fks] ftldh otg ls vkt rd fo|ky; esa ek= nks v/;kid gksus ds dkj.k f''k{k.k dk;Z iwjh rjg vo:) gks jgk gS A

ea=h us fo|ky; dh d`f"k Hkwfe dh fcuk dk;Zdkfj.kh dh cSBd cqyk;s vius [kkl O;fDr dks ,d o"kZ ds fy, iVVs ij mBk fn;k gS vkSj blls izkIr /ku u ekywe dgkW iz;ksx fd;k gS A tcfd ;g dk;Z vc rd izcU/k }kjk fd;k tkrk jgk gS A blds vfrfjDr izcU/kd dk izdj.k ek0 mPp U;k;ky; bykgkckn esa fopkjk/khu gksus ij Hkh ea=h ,ts.Mk es Loa; dks ea=h @ izca/kd fy[krs gS A tks ek0 mPp U;k;ky; dh voekuuk gS ,slh n''kk esa eaa=h ds fo:) mfpr dk;Zokgh dh tk;] ftldk leFkZu Jh ;knosUnz eqnxy us fd;k A

Jh lqjs''k pUnz ''kekZ us izLrko j[kk fd ea=h }kjk fujUrj futh LokFkZ o''k laLFkk dks {kfr igqaWpkus ,oa voS/kkfud dk;Z djus ds fy, mRrjnk;h ekurs gq, muls lfefr dh lnL;rk ,oa ea=h in ls R;kx i= ekaxk tk; bldk leZFku lHkh mifLFkr lnL;ks us fd;k] bl ij ea=h Jh jkedqekj cSk[kykdj vlalnh; Hkk"kk dk iz;ksx djrs gq, cSBd ls mBdj pys x;sA

Jh jke f[kykMh ''kekZ us izLrko j[kk fd ea=h Jh jkedqekj ''kekZ dks muds vlH; O;ogkj ,oa voS/kkfud dk;ksZ ds fy, mUgs lfefr dh lnL;rk ls rqjUr fu"dkf"kr dj ea=h in ls Ik`Fkd dj fn;k tk;] ftldk leZFku Jh fujatu nso e`nxy }kjk fd;k x;k A

fopkjksijkUr mifLFkr lHkh lnL;ks }kjk ea=h in ,oe lnL;rk ls fu"dkf"kr dj fn;k x;k A

Jh jke f[kykM+h ''kekZ us v/;{k egksn; dh vuqefr ls izLrko j[kk fd vkt dh cSBd es fjDr LFkku dh iwfrZ Hkh dj ysuh pkfg, A izLrko dk leZFku lHkh lnL;ks us fd;k A

v/;{k egksn; us eU=h in gsrq izLrko ekaxk Jh ;knosUnz dqekj e`nxy us Jh pEikyky ''kekZ ds uke dk izLrko dk leZFku lHkh lnL;ks us fd;k rFkk Jh pEikyky ''kekZ ,oa lEefr ls ''ks"k dk;Zdky ds fy, ea=h fuokZfpr gq, A

Jh jke f[kykM+h us izLrko j[kk fd pwWafd pEikyky ''kekZ ds ea=h cu tkus ls mi ea=h dk in fjDr gks x;k gS vr% vkt dh cSBd esa miea=h Hkh pqu ysuk pkfg, A miea=h ds in ds fy, lqjs''k pUnz ''kekZ ds uke dk izLrko Jh ;knosUnz dqekj e`nxy us j[kk izLrko leFkZu lHkh lnL;ks us fd;k izLrko loZ lEefr ls ''ks"k dk;Zdky ds fy, miea=h fuokZfpr gq, A dk;Zdkfj.kh lnL; ds fjDr in ds fy, Jh lqjsUnznso ''kekZ ds uke dk izLrko jke f[kykM+h ''kekZ us j[kk izLrko dk leZFku lHkh lnL;ks us fd;k izLrko loZ lEefr ls ikfjr gqvk rFkk Jh lqjsUnz nso ''kekZ ''ks"k dk;Zdky ds fy, dk;Zdkfj.kh ds lnL; fuokZfpr gq, A

vU; dksbZ izLrko u gksus ds dkj.k v/;{k egksn; us cSBd lekfIr dh ?kks"k.kk dhA

gLrk{kj @ viBuh; 28-08-2007

On the basis of the aforesaid meeting the learned Counsel for the petitioner submits that there is no indication that as to how many persons had participated in the meeting. As regards question put-forth by the Court whether the dispute raised in this writ petition can be raised in a suit before the Civil Court as the proceedings u/s 25 of the Societies Registration Act, 1860 are summary in nature, he has replied that clause 4 of the Bye-laws of the Society appended as Annexure-1 to the writ petition provides for duties of the general body. He has then placed reliance on clauses Ga and Ja of the bye-laws 9 read with clauses 18 and 19 and submits that the respondents committee had no authority to hold the meeting, hence the Prescribed authority has committed an illegality by recognizing the list of the office-bearers of the society after expulsion of the petitioner. He states that only course open for the Assistant Registrar in the circumstances was to have referred the matter to the Prescribed Authority which he was duty bound to do, hence the proceedings in which 7 office bears were said to have been elected are in contravention of the bye-laws as well as the order of the Deputy Registrar suffers from illegality and arbitrariness and is liable to be quashed having been passed without jurisdiction as there is error apparent on the face of record whereby the proceedings of electing office-bears were not valid.

Learned Counsel for the respondents submits that Suit No. 87 of 2007 has been filed by Gram Vikas Samiti Ganiyawali, Aligarh through its Secretary Sri Champa Lal Sharma in which an interim order was passed on 5th September, 2007 which is as under:

izkFkZuk i= 6 x ij oknhx.k ds fo}ku vf/koDrk dks ,d Ik{kh; :i ls lquk A oknhx.k ds fo}ku vf/koDrk }kjk dFku fd;k x;k fd oknh la0 &2 pEikyky ''kekZ xzke fodkl lfefr xkWao xfu;koyh vyhx<+ jftLVMZ lkslkbVh ds ea=h gS A izfroknh Jh jkedqekj ''kekZ tks iwoZ esa xzke fodkl lfefr xfu;koyh ds ea=h Fks fnukad 23-08-07 dks ea=h in ls gVk fn;s x;s vkSj oknh la0 & 2 pEikyky ''kekZ dks ea=h fu;qDr dj fn;k x;k ysfdu izfroknh xzke fodkl lfefr xfu;koyh ds ''kkfUriw.kZ dk;Z vkSj izcU/ku esa vVdys iSnk dj jgs gS ;fn izfroknh dks ,slk djus ls ugh jskdk x;k rks oknhx.k dks viw.kZuh; {kfr gksxh vkSj xzke fodkl lfefr dk dk;Z :d tk;sxk A vr% izfroknh dks fu;r fnukad ds fy, fu"ksf/kr fd;k tk;s fd og oknhx.k ds dk;Z {ks= vkSj izca/ku esa gLr{ksi djus ls ckt jgs A

eSus oknhx.k ds fo}ku vf/koDrk dks lquk i=koyh rFkk dkxt la0 &9Xk yxk;r 16 x dk lE;d ifj''khyu fd;k A

oknhx.k ds i{k esa izFke n`"Vr;k ekeyk curk izrhr gksrk gS A foyEc ls mudk okn izLrqr djus /;s; foQy gks ldrk gS A vr% fu;r fnukad rd ds fy, izfroknh dks oknhx.k ds dk;Z{ks= izcU/ku essa gLr{ksi djus ls fu"ksf/kr fd;k tkrk gS A oknhx.k vkns''k 39 fu;e 3 lh0ih0lh0 dk vuqikyu vfoyEc djs vkSj bl gsrq vko;''d ''kiFk i= vfxze dk;Z fnol rd izLrqr djsa A i=koyh okLrs vkifRr fuLrkj.k 6 x fnukad % 8-10-07 dks is''k gks A

gLrk{kj @ viBuh; flfoy tt �d0iz0� vrjkSyh vyhx<+

He submits that against the aforesaid interim order Civil Misc. Appeal No. 53 of 2007 was filed by the petitioner which is already pending but the petitioner has come up in this writ petition inspite of the fact that Civil Suit and Misc. Appeal aforesaid are already pending with regard to the matter of election of the society or any proceedings which is said to be illegal by the petitioner.

In rebuttal Sri Ashok Khare, learned Senior Counsel for the petitioner has submitted that suit was filed against the proceedings in which an interim order was passed on 5th September, 2006.

It is apparent that the parties in the writ petition have already raised this question in suits as stated above. It is an admitted fact that suit No. 87 of 2007 has been filed challenging the illegality committed in the proceedings while conducting the election. Appeal No. 53 of 2007 has also been filed challenging grant of interim order dated 5th September, 2007.

Section 25(1) of the Societies Registration Act, 1860 provides that whenever there is any doubt or dispute in respect of election or continuance in office of an office bearer in the society, the Registrar or 1/4th of the members of the society may refer the matter to the Prescribed Authority for decision in a summary manner. Admittedly, in the instant case the Registrar does not appear to have referred the matter of dispute regarding expulsion of the petitioner as office bearer of the society as he did not think it proper to refer the matter to the Prescribed Authority u/s 25(1) of the Act.

The proceedings u/s 25 of the Societies Registration, 1860 are summary in nature and they are amenable to the jurisdiction of Civil Court which is not ousted by the aforesaid provisions of the Act.

From a perusal of the agenda meeting it is apparent that the petitioner has been removed from the post of Mantri for working against the interest of society for enrolling said farji members which affected the rights of other members of the society.

The fact whether the proceedings enrolling ''Farji'' members in the society or for doing an act which is in the interest of society or against the interest of society is the question which requires findings of facts by adjudication on the basis of oral and documentary evidence which may be adduced by the parties before the Civil Court. Suffice it to say that the jurisdiction of the Civil Court having not been ousted pursuant to proceedings under for adjudication of same disputed question of fact as in this writ petition, hence in the facts and circumstances of the case, this Court is not inclined to interfere in the matter as it is not feasible for this Court to record findings of facts under Article 226 of the Constitution.

The petitioner may also file suit for adjudication of facts in regard as respondents have already filed suit for adjudication of their rights, I am supported in my view by judgment rendered in Prabhat Misra v. Jai Shankar Tripathi 1978 AL.J. 672 in which it has been held that the Prescribed Authority is required to decide a reference in a summary manner which itself suggest that final adjudication of dispute is to be done by Civil Court. The provision u/s 25 of the Act and rules framed there under do not provide any adequate remedy inasmuch as do not prescribe any procedure for final adjudication of the dispute and also does not provide any remedy such as appeal or revision etc. against the summary decision of the Prescribed Authority.

It does not even provide that orders passed by the Prescribed Authority shall be final. Even Section 25(3) can apply to those matters which the Prescribed Authority is competent to decide and has decided and in pursuance of which the Registrar has called a meeting Therefore even if the dispute is not referred to the Prescribed Authority, the jurisdiction of the civil court cannot be said to be barred.

In my opinion, merely because summary remedy is provided for resolving a dispute will not take away the jurisdiction of the civil court to decide the matter carrying out of orders passed u/s 25 which as stated above does not provide either adequate effective final remedy.

It may also be noted that Sections 6 and 7 specifically provide remedy by suits in the civil court, hence if the intention of Section 25 was to bar the jurisdiction of the civil court in respect of certain matters, the UP. Amendment Act would have said so or a proviso would have added to Section 6, but it has conspicuously not been done.

For the reasons stated above, the writ petition is, accordingly, dismissed on the ground of alternative and efficacious remedy. No order as to cost.