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Judgment
Sanjay Misra, J.—Counter affidavit and rejoinder affidavit have been exchanged between the respondent no. 4 and the petitioner who are the contesting parties in both these writ petitions.
Sri R.N. Singh learned Senior Counsel for the petitioners in both the writ petitions and Sri Ashok Khare learned Senior Counsel for the respondent no. 4 in both the writ petitions as also learned Standing Counsel for the State respondents have been heard hence both these writ petitions are being decided today itself.
Writ Petition no. 53333 of 2010 Vishram Singh and others Vs State of U.P. & others has been filed by as many as fourteen persons claiming themselves to be life members of the society by the name of Rajput Patharia Vidyalaya Sabha, Kamal Ganj, District Farrukhabad and are aggrieved by the order dated 17.8.2010 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur (annexure 14 to the writ petition) whereby the Deputy Registrar has directed holding of election of Committee of Management of the society on the basis of list of members submitted by the respondent no. 4 namely Sri Ashwani Kumar Singh.
Writ Petition no. 52383 of 2010 Mewa Ram Verma and others Vs State of U.P. & others has been filed by two petitioners namely Sri Mewa Ram Verma and Sri Kulap Singh claiming themselves to be life members of the society. These petitioners are also aggrieved by the order dated 17.8.2010 passed by the Deputy Registrar, Firms, Societies and Chits whereby he has directed for holding election of the Committee of Management on the basis of members of the general body of the society submitted by respondent no. 4 namely Sri Ashwani Kumar Singh (wrongly mentioned as respondent no. 3 in paragraph 3 of the writ petition).
In Writ Petition no. 53333 of 2010 Vishram Singh & others Vs State of U.P. and others Sri R.N. Singh learned Senior Counsel assisted by Sri Ram Gopal Tripathi has submitted that the impugned order has been passed in violation of the principles of natural justice without any notice to the petitioners before treating them to be ousted from the list of members of the general body, more particularly when the petitioners claim themselves to be life members of the society. He has also submitted that the finding recorded in the impugned order that there were arrears of dues on the part of the petitioners due to which they have been ousted is illegal they being life members and they were not in any manner disqualified from participating in the election of the Committee of Management being life members of the general body. He also submits that before passing the impugned order the Deputy Registrar has failed to examine the original records available in his own office with respect to the members of the general body either life members or members subsequently enrolled.
In Writ Petition no. 52383 of 2010 Mewa Ram Verma and others Vs State of U.P. & others Sri R.N. Singh has referred to a decision dated 29.10.2009 in Writ Petition no. 7583 of 2008 filed by the society through Sri Kulap Singh and others where by the order dated 10.9.2007 passed by the Deputy Registrar was sought to be quashed since it affirmed the alleged election dated 6.8.2006 held by the respondent no. 4. The writ petition was allowed and the order dated 10.9.2007 was set aside since no notice had been actually served prior to passing the impugned order dated 10.9.2007. The court had required the authority to reconsider the objections. He states that the Deputy Registrar by order dated 23.1.2010 cancelled the list submitted by respondent no. 4 and directed the petitioner to furnish his list and proceedings of his elections. He has further stated that those members of the general body of the society who have been fraudulently inducted by Sri Ashwani Kumar Singh cannot be permitted to vote since Sri Ashwani Kumar Singh (respondent no. 4) was neither President nor Secretary of the society and the election dated 6.8.2006 was a forged election. According to him in the order dated 23.1.2010 a specific finding to such effect has been recorded. According to him when order dated 10.9.2007 was set aside and the Deputy Registrar was required to redetermine the electoral role the observations made in that order dated 23.1.2010 relating to status of the members could not be ignored, more particularly because the order dated 10.9.2007 was set aside for violation of principles of natural justice and therefore while passing the impugned order dated 17.8.2010 it was incumbent upon the Deputy Registrar to consider and follow the reasons given in his order dated 23.1.2010. According to Sri Singh the list submitted by respondent no. 4 Sri Ashwani Kumar Singh could not have been accepted and therefore the impugned order requires to be set aside.
Sri Ashok Khare learned counsel for the respondents in Writ Petition no. 53333 of 2010 Vishram Singh and others Vs State of U.P. & others has contested the submission and has submitted that 15 alleged members have filed this writ petition who are not the original members and the 14 members who are the original members and are included in the list have not filed any writ petition or made any complaint against the direction contained in the impugned order. A further submission has been made regarding the relationship between the petitioners interse. He also states that the election schedule has been declared and nominations are to be filed on 8.9.2010 and therefore also this court may not interfere once the process of election has started and any grievance can be raised after the election in appropriate proceedings.
In Writ Petition No. 52383 of 2010 Sri Khare has submitted that the election held by Sri Kulap Singh in 200506 for a period of five years was not approved and therefore any renewal of registration obtained by Sri Kulap Singh was by misleading the authority. He has also submitted that the list submitted by the petitioners Kulap Singh is on the basis of an illegal election and hence cannot be accepted. He states that notices were served on the petitioners by the Deputy Registrar prior to passing of the impugned order and any allegation of collusion of the answering respondent is misconceived. He refers to the communication made by Sri Kulap Singh to the Deputy Registrar to the effect that no elections have been held after 2006 and he has requested for holding of election under Section 25 (2) of the Societies Registration Act. He has denied allegations of embezzlement and irregularities against the respondent no. 4 and has made such allegations against the petitioner no. 2. The fact that certain persons have been removed from the membership of the society has been denied and some persons who were members of the society have died. According to Sri Khare there is no rival Committee of Management in the present case and the dispute is actually between the father Sri Kulap Singh and his son Sri Ashwani Kumar Singh for control of the society.
Sri R.N. Singh learned counsel for the petitioners in both the writ petitions has placed reliance on a decision of the Supreme Court in Mohan Lal Vs Anandi Bai & others AIR 1971 Supreme Court 2177 to state that when an order of remand is passed with direction to the authority to consider a particular plea then the pleas are to be only those which have been directed to be considered upon remand. He has also relied on a decision of this court in the case of Sanjeev Kumar Vs Election Officer AIR 1995 Allahabad 135 and places reliance on paragraph 10 to submit that the High Court under Article 226 of the Constitution of India is not barred from interfering in the process even if the election process has started. According to him in this case it was found that a grave and patent mistake was likely to be occasioned in case the High Court did not interfere even after the election process had started. He applies the ratio of the aforesaid judgment on the facts and circumstances of the present case by submitting that the members who were life members could not be debarred from participating in the election and the impugned order passed by the Deputy Registrar has actually done so.
Sri Ashok Khare learned counsel for the respondents has placed reliance on a decision of a Division Bench of this court in Basant Prasad Srivastava & another Vs State of U.P. & another 1993 (2) UPLBEC 1333 and submits that the Division Bench has clearly held that once the election process starts it must come to its logical conclusion by declaration of the result of the election and the aggrieved party may challenge the same in the appropriate forum. He submits that approaching the court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. He states that the election programme has been declared in pursuance to the impugned order and nominations are to be filed tomorrow i.e. 8.9.2010 hence this court would not interfere since no such circumstances have been brought on record by the petitioners of these writ petitions nor there is any cogent reason shown to enable this court to come to a conclusion that finding of facts recorded are erroneous and any valid member is being deprived of his right to contest the election or to cast his vote.
Having considered the submission of learned counsel for the parties and perused the record the decisions cited by learned counsel for the parties and the law laid down there in cannot be disputed. Only its applicability in the facts and circumstances of the present case is to be considered for determining whether the ratio laid down would apply in favour of either of the parties.
The impugned order passed by the Deputy Registrar has rejected the list of members submitted by Sri Kulap Singh (petitioner) on reasons which have been detailed in the order itself. The reasons contained in the impugned order are best quoted here under since they are quite clear. The relevant portion is quoted here under:
A perusal of the afore quoted reasons indicate that several findings of fact have been recorded regarding the records of membership produced by either of the parties before the Deputy Registrar. He has found that there are several irregularities, omissions, cuttings in the original records and has also found that for certain members the membership fee has not been deposited and if deposited the dates are not mentioned. He also found that in the year 1999 receipts were issued for deposit of membership fee to the extent of Rs. 13,000 but there is no evidence of deposit of that amount in any account of the society. Having perused the record and recorded his findings of facts he has found that the list submitted by Sri Kulap Singh of the general body is not valid in view of the provisions of the Societies Registration Act and hence has disbelieved the same. He has held that the list of members of general body submitted by respondent no. 4 Sri Ashwani Kumar Singh is correct and he has declared it as valid which shall form the electoral college for the election of the Committee of Management.
A perusal of both the writ petitions indicate that averments have been made that the said findings recorded by the Deputy Registrar are incorrect. However, this Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot take any evidence for proof of documents as if it was deciding a Civil Suit where stricts standards of proof of evidence are required and, therefore, it has been repeatedly held that when a finding of fact has been recorded by an Authority competent to do so and it has not been shown to be absolutely perverse and not based on any evidence the Writ Court should not normally interfere in such findings of fact. The findings recorded on the basis of perusal of the membership registers and receipts books by the Deputy Registrar are such findings of fact and even if the membership register the entries therein and the receipt books are disputed by one party to these proceedings, this Court has no mechanism available to it to ensure a strict standard for proof of such documents so as to enable the Writ Court to set aside a finding of fact recorded by an Authority which is competent to do so.
That being the circumstance the finding of fact in the impugned order against the list submitted by Sri Kulap Singh are such findings of fact based upon perusal of the documents. A mere averment in the writ petition that such findings are perverse cannot be made the basis to strike them down. More particularly, when this Court cannot record any finding on the correctness or incorrectness of entries made in the registers, receipts and other documents relied upon by the Deputy Registrar which are seriously disputed questions relating to evidence.
Consequently, when such findings have been recorded the petitioners had an option of pursuing such legal remedy available to them in law before a forum which could consider the evidence relied upon by the Deputy Registrar and after proof or disproof record a finding of fact either setting aside or affirming the findings of fact recorded by the Deputy Registrar. The petitioners have chosen to invoke the writ jurisdiction of this Court which is under a handicap for recording findings of fact on disputed questions of fact particularly when the parties allege fraud and forged documents against each other.
Another aspect of challenge to the impugned order is based upon the effect of the order dated 29.10.2009 passed in Writ Petition no. 7583 of 2008. In this writ petition at the instance of the petitioners herein the order dated 10.9.2007 of the Deputy Registrar was challenged. It was set aside by the court. The order dated 10.9.2007 of the Deputy Registrar was an order whereby he had affirmed an election dated 6.8.2006 claimed by the respondent no. 4. The challenge to the order was mainly on the ground that the petitioners objection to the alleged election dated 6.8.2006 were not considered. The court found that the notice dated 7.5.2007 sent by the Deputy Registrar to the petitioners was actually never served upon them. Hence the order dated 10.9.2007 whereby the election dated 6.8.2006 was affirmed was set aside and the Deputy Registrar was directed to consider the objections of the petitioners. The Deputy Registrar considered the objections and by his order dated 23.1.2010 has cancelled the list and election proceedings submitted by the respondent no. 4.
The respondent no. 4 assailed the order dated 23.1.2010 in Writ Petition no. 6397 of 2010 wherein by agreement of the parties the order dated 23.1.2010 was set aside on 11.2.2010 and since the term of the Committee of Management had expired it was directed to determine the electoral college and hold fresh elections.
It is thus clear that although the approval order dated 10.9.2007 of the Deputy Registrar was set aside on 29.10.2009 for the reason of non service of notice but then the order dated 23.1.2010 passed thereafter was set aside on 11.2.2010 on the agreement of both the parties. Therefore when the order dated 23.1.2010 of the Deputy Registrar had been passed for reasons contained therein but the parties got it set aside by agreement then the findings recorded therein or the reasons given for the conclusion would also go. These were two orders of the Deputy Registrar both relating to the election dated 6.8.2006. The first order dated 10.9.2007 affirming the election was held bad for non compliance of natural justice and it could be argued that the reasons for affirming the election were not interfered with and hence ought to have been taken into consideration. They actually were taken into consideration when the order dated 23.1.2010 was passed by the Deputy Registrar and he cancelled the election dated 6.8.2006. But then in the writ petition filed by the respondent no. 4 against the order dated 23.1.2010 both the parties agreed that the order should be set aside and it was set aside on 11.2.2010 by the court on agreement of the parties.
Therefore both the orders of the writ court would have different effect. The order dated 29.10.2009 of the writ court had set aside the affirming order of Deputy Registrar only for the reason of non service of notice and non consideration of objection of the petitioner. Whereas the order dated 11.2.2010 of the writ court had set aside the second order of Deputy Registrar on the agreement of both parties. In the first order dated 29.10.2009 the writ court adjudicated the grievance of the petitioner on its merits but in the second order dated 11.2.2010 the writ court did not adjudicate any lis between the parties. The parties got the writ petition decided on agreement. Hence the order dated 23.1.2010 of the Deputy Registrar was set aside with its findings, reasons and conclusion et all.
Under such circumstances it cannot be accepted that the findings, observations and reasons contained in the order dated 23.1.2010 of the Deputy Registrar ought to have been considered and followed when the impugned order dated 17.8.2010 was being passed by him.
There is yet another reason which qualifies the above conclusion. The reasons given in the earlier orders dated 10.9.2007 and 23.1.2010 of the Deputy Registrar are not the reasons that have been made the foundation of the impugned order dated 17.8.2010. The impugned order dated 17.8.2010 has considered the evidence to determine the electoral college. Whereas the earlier orders dated 10.9.2007 and 23.1.2010 were passed relating to the alleged election dated 6.8.2006. Therefore when the writ court by the order dated 11.2.2010 directed for determining the electoral college the Deputy Registrar has passed the impugned order determining the electoral college. Consequently the facts and circumstances of the present case indicate that upon remand the Deputy Registrar was not considering the validity of the election dated 6.8.2006 but has determined the electoral college for fresh elections as directed by the order dated 11.2.2010 passed by the writ court. The decision in the case of Mohan Lal (supra) is therefore not attracted. Further there is no such circumstance made out for this court to interfere in the election or the election process starting from tomorrow.
Consequently, such findings of fact having not been shown primafacie to be absolutely perverse, this Court refrains itself from interfering in the same. The impugned order has concluded that the list submitted by Sri Ashwani Kumar Singh is valid and legal. That conclusion is based upon the findings of fact recorded on the basis of documents and records perused by the Deputy Registrar. Either the conclusions could be challenged as being foreign to the finding of fact recorded therein or the findings could be challenged as being against the evidence or any provisions of law.
None of the two ingredients are available in this case. The conclusion arrived at in the impugned order is based upon the findings of fact recorded therein and the findings are based on evidence referred to therein. Hence no interference is required in the same by this court under Article 226 of the Constitution of India.
For the aforesaid reasons, there is no merit in these writ petitions. Both the writ petitions are dismissed.
No order is passed as to costs.