Board of Governors of Lucknow Christian College Society and another vs State of U.P.and others

Rajiv Sharma, J.

Heard Dr. L.P. Misra, learned counsel for the petitioners, Sri Jaideep Narain Mathur, Addl. Advocate General and Sri Sandeep Dixit, who has put in appearance on behalf of opposite party no.4.

In the instant writ petition, the petitioners have assailed the order dated 4.11.2008 passed by the Deputy Registrar, Firms, Societies & Chits, Lucknow, referring the matter to the Prescribed Authority under Section 25(1) of the Societies Registrar Act, 1860 interalia on the grounds that the provisions of Section 25(1) are applicable in the cases of election disputes whereas in the instant case, the office of President/Secretary and Manager of the College is not an elected office under the ByeLaws of the Society; the impugned order has been passed in blatant disregard of the provisions of natural justice; and the order impugned is without jurisdiction.

In short the facts of the case as averred in the writ petition are that the petitioner''s Society i.e. the Board of Governors of Lucknow Christian College Society was registered on 25.1.1917 under the Societies Registration Act, 1860 and it was renewed from time to time. The last renewal was granted for a period of 5 years vide order dated 30.6.2006. The affairs of the Society as well as the colleges run and managed by the said Society are governed by the provisions of the Constitution of the Board of Governors/Memorandum of Association/Byelaws of the Society. Under the Byelaws of the Society, the Board of Governor is the Supreme Body. Under Clause III of the Byelaws, the membership of the Board of Governors shall be of two classes; namely, exofficio members and elected members. Board of Governors comprises of Chairman, Vice Chairman, Secretary and other members, the former three being its officers as provided under clause IV of the Byelaws. The office of the Secretary of Board of Governors is to be held by the same person as President of Christian College, who in turn, is to be appointed by the Board of Governors under Clause V (6) of the Byelaws. Officers of the Board of Governors as defined in Clause IV reads as under:

" Officers of the Board of Governors : (1) The Chairman : The Bishop having residential supervision of the Episcopal are in which the College is located shall be the Chairman.

(2) The ViceChairman : The ViceChairman shall be nominated annually by the Chairman.

(3) The Secretary and Executive Officer : The President of the college shall be the Secretary and Executive Officer."

Clause IX(1) defines the Committee of Management as the authority to manage and conduct the affairs of the several academic units of the College which shall be responsible for properly running the said academic units in accordance with the rules and regulations of the Board of Governors of Lucknow Christian College.

Mr. P. R. Hamlin was initially appointed as President by the Board of Governors vide order dated 17.12.1991 for a period of one year. Subsequently, he was confirmed as President w.e.f. 7.5.1993. According to the petitioner, as there were complaints regarding the working of the opposite party No.4 as President, the Board of Governors in its Annual General Meeting dated 1.3.2008 resolved to make appointment on the post of President, Lucknow Christian College and delegated the powers to an executive committee constituted for the purpose. The Executive Committee said to have passed a resolution on 26.8.2008 for appointment of petitioner No.2 as President of the College w.e.f. 1.7.2008 and relieving the opposite party No.4 from the office of the President of Lucknow Christian College. It is said that the resolution passed by the Executive Committee was accepted by the Board of Governors in its meeting dated 6.8.2008. The Deputy Registrar recognized the Managing Committee and the members and its office bearers by the order dated 27.8.2008.

Counsel for the petitioner submits that in spite of the fact that the petitioner no.2 was recognized as Manager of the Committee of Management, there was no occasion for the opposite party no.2 to pass the impugned order dated 4.11.2008, which is illegal for the reason that there was no election dispute and the opposite party No.4 on whose representation the said order was passed, has no locus to raise such a dispute. The impugned order is also violative of Article 30 of the Constitution of the India, as it is a minority institution.

The Deputy Registrar while referring the matter under Section 25 (1) of the Act failed to understand that there was no election dispute as the President/Secretary/Manager is appointed, not elected as per byelaws of the Society.

Shri Sandeep Dixit appearing for the opposite party No.4 has submitted that the subject matter of the present writ petition is the order dated 4.11.2008 passed by the Deputy Registrar, Firms, Societies and Chits invoking the provisions of Section 25 (1) of the Societies Registration Act, 1860 so as to refer the dispute for the post of President/Secretary/ Manager to the Prescribed Authority/SubDivisional Officer, Sadar, Lucknow. A perusal of the order would show that the Deputy Registrar, Firms, Societies and Chits has specifically mentioned in its order that there is a dispute with regard to the post of President/Secretary/Manager between Sri Prem Reginald Hamlin and Dr. S. W. Prasad and, therefore, the Deputy Registrar invoked the provisions of Section 25 (1) of the Act.

Clarifying the position, he further submitted that a perusal of the provisions of Section 25 (1) and 25 (2) would show that a dispute in respect of election or continuance in office of an office bearer can be adjudicated under the provisions of 25 (1) whereas under the provisions of 25 (2), if an election is set aside or an office bearer is held no longer entitled to continue in office. Thus, there is no illegality in referring the dispute by the Deputy Registrar, Firms, Societies and Chits with regard to the post of President/Secretary/ Manager for its adjudication.

As regard the submission of petitioner''s counsel regarding the complain of not affording opportunity of hearing before passing the impugned order, Sri Sandeep Dixit vehemently argued that this argument is misconceived, in view of the fact that under the provisions of Section 25 (1) of the Act there is no such requirement. However, the ground taken by the petitioner is wholly misconceived and incorrect on the face of record, which is evident from the averments made in paragraph 9 of the Short counter affidavit filed by the State. The State has also filed a copy of the letter dated 22.9.2008 as Annexure SCA8 which shows that the Chairman of the Board of Governors was afforded the opportunity to submit their replies and alongwith the letter the copies of the letters submitted by Mr. Prem Reginald Hamlin dated 8.9.2009, 18.9.2008 and 20.9.2008 were also supplied.

Sri Sandeep Dixit next argued that the petitioners have indulged into filing forged documents before the Deputy Registrar and thereby have played fraud to achieve the motive, which otherwise they cannot achieve. The petitioners have filed a list certified by the Deputy Registrar, Firms, Societies and Chits showing 20 names, which was neither signed by the Chairman of the Board of Governors nor by the members whereas a list which has been submitted by Bishop C. Cornelius, Chairman, Board of Governors under his signature in the office of the Deputy Registrar, Firms, Societies and Chits for the year 2008 has been filed as Annexure No.SCA3 by the State Government is altogether different and bears the nine forged signatures and the names of the persons whose signatures have been forged are Mr. Prem Reginald Hamlin, Dr. (Mrs.) E. S. Charles, Rev. P. Ahaley, Dr. Mani Jacob, Dr. A. S. Thacore, Mr. A. R. Bailey, Rev. H. B. Ram, Dr. Samual Gill and Mr. H. K. Lal which is evident on the face of record as the document filed on page 46 has been stated by the petitioners as a list of members which has been certified by the Deputy Registrar, Firms, Societies and Chits. Thus, the statement, on oath, is incorrect as no document can be received in the office of Deputy Registrar, Firms, Societies and Chits, which does not bear the signature of the Chairman of the Board of Governors and signatures of few of the members are also missing.

Counsel for the contesting private respondent has placed reliance on All India Council and another vs. Assistant Registrar, Firms, Societies and Chits [AIR 1988 Allahabad 236] wherein it has been observed that so far as the dispute or doubts in respect of the election or continuance in office of an office bearer of a society registered in the State of U.P. is concerned, the legislature has created a specific forum and laid down an exhaustive procedure for determination of the same under Section 25 of the Act. Therefore, the Deputy Registrar has rightly referred the matter to the Prescribed Authority as undoubtedly there was a dispute regarding continuance in office.

Sri Jaideep Narain Mathur, learned Additional Advocate General submits on 14th March, 2008 Bishop C. S. Cornelius, Chairman of the Committee of Management, submitted a list of elected members of Society alongwith a revised Constitution of the Society. On 20th March, 2008, the Deputy Registrar on the basis of the letter dated 14.3.2008 registered the list of members furnished to him by the Chairman of the Society. On 8.4.2008, Bishop C. S. Cornelius, the Chairman of the Society filed the list of members of the Committee of Management from 200506 to 200809. Alongwith this list, he also filed proceedings of the election purported to have been conducted on 27.7.2007 for the year 200708 as confirmed in the meeting held on 2.4.2008. On 1st July, 2008 Sri S. W. Prasad, styling himself as Secretary of the Committee of Management sent a revised list alongwith the minutes of meetings held on 1.3.2008 and 26.5.2008. Since Sri S. W. Prasad was not registered as the Secretary of the Society by the Deputy Registrar and an explanation was called for by the letter dated 19.7.2008. On 16.8.2008 Bishop C. S. Cornelius, Chairman of the Committee of Management wrote to the Deputy Registrar that the issue relating to the post of President, Lucknow Christian College had been amicably resolved. He informed that Mr. P. R. Hamlin was designated as the "outgoing President" and Dr. S. W. Prasad as the "Incoming President". It was clarified that this arrangement would continue till 31.3.2009. This intimation was informed by the Deputy Registrar by a written communication with both Mr. P. R. Hamlin and Dr. S. W. Prasad on 26.8.2008.

He further submits that on 27.8.2008, the Deputy Registrar registered the revised list of the Committee of Management as filed by Bishop C. S. Cornelius. However, Sri P. R. Hamlin, by his representation dated 8.9.2008 and 18.9.2008 informed that the letter and spirit of the decision of Bishop C. S. Cornelius communicated to the Deputy Registrar on 16.8.2008 had been completely violated. On these representations, the Deputy Registrar sought the comments from Bishop C. S. Cornelius on 22.9.2008. On 7.10.2008, Bishop C. S. Cornleius wrote to the Deputy Registrar and sought to nullify the stand taken by him earlier with regard to the status of Mr. P. R. Hamlin and Dr. S. W. Prasad and stated that Dr. Prasad had been elected President of the Committee of Management on 26.5.2008 by the Executive Committee of the Society and Mr. P. R. Hamlin ceased to be the President w.e.f. 1.7.2008. This communication from Bishop C. S. Cornelius is in complete contrast and contradiction to his earlier letter dated 16.8.2008 and stand taken therein. Thus, it is apparent that the impression that was given to the Deputy Registrar that there was no dispute with regard to the constitution of the Committee of Management was incorrect since in fact diametrically opposite stands were being taken by Bishop C. S. Cornelius by misleading the Deputy Registrar. The Deputy Registrar on the basis of the aforesaid facts and circumstances reached to a logical conclusion that deliberately inconsistent stands were being repeatedly taken by even the Chairman of the Society, Bishop C. S. Cornelius. Thus it was evident that the matter was one which had to be decided by the Prescribed Authority by recourse to Section 25 (1) of the Act. Accordingly, a reference has been made to the Prescribed Authority on 4.11.2008. The Deputy Registrar has scrutinized the relevant documents and was satisfied that the contradictions contained therein indicate that there is in fact a dispute relating to the elections of the Committee of Management of the Board of Governors of the Lucknow Christian College.

Sri Mathur also submitted that the main concern of the State is that the affairs of the college are run smoothly, the teachers and the staff are paid their salary, and the interest of students should not be adversely affected due to managerial dispute. He further submitted that it would be in the fitness of things that the properties of the Society which run these schools in the city of Lucknow are neither alienated nor transferred or sale by the Board of Governors or by the petitioner No.2 and further no important financial and administrative decisions are taken except the routine work. It is apprehended that if a restraint order is not passed, there is apprehension that the petitioners either may transfer the property belonging to the Institutions or the funds would be diverted. He, therefore, suggested that the District Magistrate or any other authority may be entrusted to function for the interregnum period.

As regard the submission of Dr. L. P. Mishra that the institution being the minority institution, the Registrar has no role to play and the provisions of Section 25 of the Act are not applicable in the cases of minority institution and that too where the President/Secretary/Manager is an appointed person and not elected, Sri Mathur submitted that once a Society is formed and it applies for registration under the Societies Registration Act, then it is under an obligation to follow the provisions of the said Act & Rules as also the order issued from time to time by the State Government, Registrar or the Deputy Registrar as the case may be. If it is said that the Registrar has no role to play, then there was no need of applying for its registration and renewal.

Before dealing with the actual controversy involved in the writ petition, I would like to mention that the law is well settled that fraud vitiates most solemn proceeding and as and when it is brought to the notice of any authority the benefit derived by any party can be always recalled but since in the present case the only question involved is whether the order passed by the Deputy Registrar referring the matter to the Prescribed Authority is correct or not, I refrain myself from recording any finding as regard the filing of documents which are said to be forged and fictitious, as urged by Sri Sandeep Dixit, Counsel for the private respondent, for the reason that the same is receiving attention of this Court in Writ Petition No. 5213 (MS) of 2008 P. R. Hamlin v. State of U. P. and others. The writ petition No. 5213 (MS) of 2008 was initially directed to be listed alongwith the instant writ petition, but subsequently at the request of the counsel for the parties, the same was delinked and was directed to be listed on 5.1.2009 before the appropriate Bench.

Now, I proceed to deal with the actual controversy involved in the writ petition. It would be useful to reproduce certain provisions of the Societies Registration Act, before proceeding any further with the merits of the case.

Section 16 of the Act defines Governing Body and reads as under:

The Governing body of the Society shall be the governors, Council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Section 25 of the Act reads as under:

"25. Disputes regarding election of office bearers

(1) The prescribed authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh , hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an officebearer of such society, and may pass such orders in respect thereof as it deems fit:

(Provided that the election of an office bearer shall be set aside where the prescribed authority is satisfied

(a)that any corrupt practice has been committed by such office bearers; or

(b)that the nomination of any candidate has been improperly rejected; or

(c)that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception of any vote which is void or by any non compliance with the provisions of any rules of the society.

Explanation I A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person

(i)induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or thereat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election;

(ii) with a view to inducing any elector to vie or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand, as or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;

(iii)abets (within the meaning o the Indian Penal Code) the doing of any of the acts specified in Clauses (I) and (ii)

(iv)induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;

(v)canvasses on grounds of cast, community, sect or religion;

(vi)commits such other practice as the State Government may prescribe to be a corrupt practice.

Explanation IIA "promise of individual advantage or profit to a person" includes a promise for the benefit of the person himself, or of any one in whom he is interested.

Explanation IIIThe State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.

(2) Where by an order made under subsection (1), an election is set aside or an officebearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of officebearers of a society has been not held within the time specified in the rules of that society, he may call a meeting of the general body of such society for electing such officebearer or office bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorized by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.

(3) Where a meeting is called by the Registrar under sub section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office bearer of the society.

ExplanationFor the purposes of this section, the expression "prescribed authority" means an officer or court authorized in this behalf by the State Government by notification published in the official Gazette."

The Act requires that a Society is to be formed by a memorandum of association and registration by at least seven persons associated with the society. The memorandum of association is to contain the name of the society, the objects of the society, and the names, address and occupation of governors, council, directors, committee, or other governing body to whom, by the rules of the society the management of its affairs is entrusted. A copy of the rules and regulations of the governing body, is to be filed with the memorandum of association. When such memorandum and certified copy of the rules with the required particulars are presented by the Secretary of the Society before the Registrar, he shall certify under his hand that the society is registered under this Act. A registration fee is to be paid for this purpose. Section 3A of this Act speaks of renewal of certificate of registration. Once a society is registered and a certificate of registration is issued, it would remain in force for a period of five years from the date of issue. If any question arises whether any society is entitled to get itself registered in accordance with Section 3 or to get the certificate of registration renewed, the matter shall be referred to the State Government, as provided in Section 3B of the Act. Section 4 of the Act requires that once in every year, on or before the fourteenth day succeeding the day which, according to the rules of the society, the annual general meeting of the Society is held, or if the rules do not provide for an annual general meeting in the month of January, a list shall be filed with the Registrar giving the names, addresses and occupations of the governor''s council, directions, committee or other governing body then entrusted with the management of the affairs of the Society.

The provisions of Section 25 of the Act as is amended by the State Legislature provides comprehensive code and creates designated forum or the Tribunal for adjudication in a summary manner of all disputes or doubts in respect to the election or continuance in office of the office bearers of the Society. [e.s.]There is no other provision, express or otherwise, providing for determination of such disputes specifically. It is settled law that where, as here, the legislature creates a specific forum and lays an exhaustive procedure for determination of a particular class of disputes in respect of matters covered by the statute. Such disputes can be determined only in that forum and in the manner prescribed thereunder and not otherwise. If, therefore, a dispute is raised with regard to the election or continuance in office of an officebearer of a society registered in Uttar Pradesh, the same, has to be decided only by the Prescribed Authority under Section 25 (1).

It is important to add that if a dispute of the nature covered by Section 25 is raised before the Registrar in connection with the submission of annual list under Section 4 (1) of the Act, the same must, in view of the Legislative mandate embodied in Section 25(1), be referred by him to the Prescribed Authority.

I find no force in the submission of the Counsel for the petitioners that provisions of Section 25 are not attracted in the present case as it deals with the disputes regarding election, whereas in the instant case, the President/Secretary/ Manager is an appointed person. Sri Jaideep Mathur has rightly contended that even if there is no election, the matter can be referred to the Prescribed Authority, if there is a dispute with regard to continuance of an office bearer of such society. The word "or" occurring before the phrase ''''continuance in office of an officerbearers of such society'' has been used to introduce another possibility. Further, the term ''''appointment'' occurring in the byelaws shall be read as entrustment of the affairs of the Society in view of Section 16 of the Act.

In the present case, the impugned order referring the matter to the Prescribed Authority give reasons for its reference. The Deputy Registrar, Lucknow Region, Lucknow, has observed that ChairmanBishop C. S. Cornelius in order to resolve the dispute peacefully gave certain suggestion vide letter dated 15.8.2008, on which objections were raised by Mr P. R. Hamlin. Mr P. R. Hamlin asserted that he is still the President/Secretary/Manager as the Board of Governors vide resolution dated 16.8.2008 have provided to handover the charge by 31.3.2009. The list dated 27.8.2008 furnished by the Chairman of institution is also disputed. Therefore, it clearly comes out that there is a dispute with regard to the post of President/Secretary/Manager between P.R. Hamlin and Dr. S.W. Prasad. Thus it was evident that the matter was one which had to be decided by the Prescribed Authority by recourse to Section 25 (1) of the Act. Accordingly, a reference was made to the Prescribed Authority on 4.11.2008 in order to remove the doubts and dispute. As regard the opportunity of hearing, the impugned order is only a reference order, which has been passed after considering the documents and letters and no lis has been decided by the Deputy Registrar. Before the Prescribed Authority, the petitioners will have ample opportunity to present their case and defend themselves.

In view of the above, no good ground is made out for interference under Article 226 of the Constitution of India and the writ petition lacks merit.

Accordingly, the writ petition is dismissed. However, it is provided that the Prescribed Authority shall decide the matters so referred to him, expeditiously, say, by 31.1.2009 in accordance with law and after giving reasonable opportunity of hearing to all the interested parties.

As averred above, Sri Jaideep Narain Mathur, Additional Advocate General and Sri Sandeep Dixit have submitted that the petitioners may not be entrusted with the financial and other powers so that they may not be able to alienate the property of the institution or other assets of the Society and the institutions which are run by the Society. Dr. L. P. Mishra appearing for the petitioners submitted that the petitioners undertake that they will not alienate the property or the assets of the Society or any of the institution which are governed by the Society and further, they will not divert the funds of the society.

Therefore, it is provided that the petitioners, their servants, their agents etc. are restrained from changing the basic nature of the property, alienating or transferring the same in favour of any other person or organization or selling the same. It is further provided that no important decision relating to teachers/staff shall be taken by the petitioners till the dispute is over.

Before parting, it is relevant to mention that since urgency was shown by the Counsel for the parties, the matter was finally heard one day preceding winter holidays and the Court informed the Counsel for the parties present in the court that the judgment will be delivered on 23.12.2008.