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Judgment
This special appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules, arises out of an order of a learned Judge passed in Writ Petition No. 63944 of 2008, whereby a direction has been issued to the Registrar, Firms, Societies and Chits, Allahabad to examine the grievance of respondents 4 to 7 petitioners, and pass a speaking and reasoned order within a prescribed time.
Challenge to the order is on the ground that even though the impugned order appears to be innocuous, yet it has seriously prejudiced the appellant in his cause, and further the said order has been passed without putting the appellant to notice or giving him any opportunity of hearing.
In short, the grievance of the appellant is that the direction issued clothes the Registrar with a power to examine a frivolous claim, which is impermissible on the grounds taken in the appeal, and additionally, the impugned order is in violation of principles of natural justice.
We have heard Mr. B.B. Paul assisted by Shri H.K. Mishra for the appellant, Shri Ram Autar Verma, who has put in appearance on behalf of respondents 4 to 7 and the learned Standing Counsel for respondents 1 to 3.
With the consent of learned counsel for the parties, the appeal is being disposed off finally at this stage.
The dispute relates to the constitution and functioning of a Committee of Management of a Society registered under the Societies Registration Act, 1860 (hereinafter referred to as the Act 1860''), which runs and manages a Junior High School by the name Adarsh Krishak Junior High School, Bodipur Dharauta, Post Office Chhata (Via Mau Aima), Block Mau Aima, Tehsil Soraon, District Allahabad (hereinafter referred to as the ''institution''). The rival claims relate to the control of management of the institution of which the appellant Ram Sajeevan Patel claims to be the validly elected Manager and respondents 6 and 7 claim themselves to be the rival Secretary and Manager of the Society and institution respectively.
The dispute has a chequered history, which dates back to the election of the Committee of Management, which was held in the year 1995. Brij Lal Patel respondent no.7 raised a dispute with regard to the elections of 1995 by filing a writ petition before this Court being Writ Petition No. 31368 of 1996. This Court directed the dispute of the elections to be decided by the Prescribed Authority under Section 25 of the Act 1860. The Prescribed Authority, who is the Sub Divisional Officer of the Sub Division concerned, decided the dispute on 13th of August, 1999 declaring the elections of the appellant Ram Sajeevan Patel to be valid. Against the said order, the respondent no.7 Brij Lal Patel filed Writ Petition No. 46297 of 1999, in which initially there was a time bound interim order and the petition was ultimately dismissed as infructuous on 16.02.2004 on the ground that the term of the Committee of Management, which was five years, had already expired. Against the order dated 16.02.2004, respondent no.7 preferred Special Appeal No. 308 of 2004, which was also dismissed on 25th of March, 2004. While dismissing the special appeal, it was observed that in any view of the matter, the orders passed by the Prescribed Authority under Section 25 of the Act 1860 are always subject to the decision in a regular suit.
The renewal of the Society was due, and taking advantage of this situation, respondent no.7 moved an application on 25.06.2004 requesting the Assistant Registrar, Firms, Societies and Chits, Allahabad to grant renewal of registration of the Society indicating himself as the Manager of the institution. The appellant Ram Sajeevan Patel moved an application before the Registrar, Firms, Societies and Chits, Lucknow requesting that the matter be transferred to some other Assistant Registrar as he does not hope for any justice from the Assistant Registrar at Allahabad. On this application, the Registrar examined the matter himself and found that the application moved by respondent no.7 Brij Lal Patel was not maintainable as the renewal had already been granted till 10th of October, 2005.
Against the aforesaid order, respondent no.6 Chhotey Lal Patel claiming himself to be the Secretary of the Society filed Civil Misc. Writ Petition No. 42056 of 2005 before this Court. This Court vide judgment and order dated 10th June, 2005 dismissed the writ petition holding that the order of the Registrar simply acknowledges the renewal of the registration of the Society and it does not decide any claim with regard to the office bearers and, therefore, it is open to the petitioner therein to seek such remedy as is available to him either under the Act 1860 or by filing a civil suit.
Respondent no.6 Chhotey Lal appears to have moved an application before the Assistant Registrar, Firms, Societies and Chits. The Assistant Registrar, taking notice of the aforesaid facts, came to the conclusion that the appellant was the Manager of the outgoing Committee of Management and, therefore, any future elections could be held only by the recognized and accepted office bearers. Accordingly, the Assistant Registrar rejected the application of Chhotey Lal Patel and held that fresh elections, which were held on 9th October 2005, have been acknowledged and the registration of the Society has again been renewed with effect from 10.10.2005 for a period of five years.
From a perusal of the records of the writ petition, which has given rise to the present special appeal, the aforesaid facts appear to have been stated in detail, but nowhere in the writ petition has it been stated as to why the respondentspetitioners upon the order dated 14.08.2006 having been issued long back did not choose to challenge the same. The writ petition was filed in the month of November 2008. Further, the prayer clause of the writ petition nowhere prays for any relief against the said order dated 14.08.2006, even though the said order has been criticised in paragraph 41 of the writ petition as a simple letter without there being a decision on the claim of the respondentspetitioners.
The respondentspetitioners instituted the writ petition praying for the following reliefs:
"a. issue a writ, order or direction in the nature of mandamus commanding the Assistant Registrar, Firms, Societies & Chits, Allahabad/respondent no.3 to refer the election dispute between the petitioners and the respondents no.5 to 7 regarding their elections held on 9.10.2005 and 9.10.2005 respectively to the Prescribed Authority under Section 25 of the Societies Registration Act, 1860."
The aforesaid writ petition has been disposed off by the impugned order without putting the appellant to notice and, as such, aggrieved by the same, the present appeal has been preferred.
The grievance of the appellant as canvassed by Shri Paul is that the writ petition was filed without questioning the correctness or validity of the order dated 14.08.2006 and without praying for quashing of the same, that too, even after almost two years of passing of the said order. He further contends that the Assistant Registrar, Firms, Societies and Chits or the Registrar, while exercising powers in respect of filing of list of office bearers under Section 4A of the Act 1860 or granting renewal of a Society does not act as a mere post office and he is not bound to refer any and every dispute to the Prescribed Authority under Section 25 of the Act 1860. He contends that it is only a bona fide and genuine dispute which can be subject matter of reference under Section 25 of the Act 1860 and not otherwise and for the aforesaid proposition, Shri Paul has relied on a decision of this Court in the case of Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti & Anr. Vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur & Anr., (1995) 2 UPLBEC 1242.
On the other hand, Shri Ram Autar Verma, appearing on behalf of respondents respondents 4 to 7, has urged that the Assistant Registrar, Firms, Societies and Chits was bound to refer the dispute in respect of fresh elections dated 9th October, 2005 and that the respondentspetitioners could not have been nonsuited by the Assistant Registrar under a mere letter dated 14.08.2006. He contends that once the Assistant Registrar was faced with two rival Committees, elections of which are alleged to have been held on the same date, then in view of the provisions of Section 25 of the Act 1860, a reference was bound to follow to the Prescribed Authority as has been done on the earlier occasion in respect of elections of 1995. He was further supported in his submission by the learned Standing Counsel who contends that the order passed by the learned Judge is innocuous and it is open to the appellant to raise his objection before the Assistant Registrar or the Registrar, as the case may be in this regard.
We have considered the rival submissions of the parties and perused the record.
It is evident from the facts narrated in the background that the dispute was being raised time and again by the contesting respondentspetitioners but their claim has not found favour by any authority till date. The dispute, which is sought to be raised, has its genesis in the elections of 1995, which were found to be valid in which the appellant Ram Sajeevan Patel was elected as the Manager. The order of the Prescribed Authority dated 13.08.1999 in spite of challenge before this Court, remained intact. Even thereafter, with regard to subsequent elections in the year 2000, the respondentspetitioners could not succeed in getting the said elections set aside. On both occasions, when the respondentspetitioners approached this Court, observations were made that in case they were aggrieved, it was always open to them to take recourse to the remedy of filing a suit. It is evident that no suit has been preferred by the respondentspetitioners in respect of earlier elections nor any such declaration has been returned in their favour.
It is in the aforesaid background that the Assistant Registrar has rightly recorded in the order dated 14.08.2006 that the appellant at least had the right to hold elections as it was the outgoing Committee of Management. The Assistant Registrar has not gone to the extent of making a declaration on the validity of elections, and has acknowledged the appellant as a genuine office bearer entitled to seek renewal of the registration of the Society, which stands renewed for a period of five years till 2010. The respondentspetitioners have now come up questioning the elections dated 9th October 2005 by filing a writ petition almost three years thereafter. The learned Judge, in our opinion, without taking notice of the aforesaid facts, has issued a mandamus to the Registrar to pass an order in respect of the dispute of elections dated 09.10.2005. In our opinion, there is no plausible explanation on behalf of the respondentspetitioners as to why they filed the writ petition almost after two years of the passing of the order and three years after the holding of the elections, and further as to why they did not challenge the order dated 14.08.2006.
The aforesaid facts having not been noticed by the learned Judge, in our opinion, renders the impugned judgment unsustainable. Further such a direction, in our opinion, could not have been issued without putting the appellant to notice. The Assistant Registrar, as pointed out in the case of Kisan Shiksha Sadan, Banksahi, (supra), is not a post office for referring any and every dispute. The respondentspetitioners with the aid of 1/5th members of the general body of the Society could have moved for a reference as provided for under Section 25 of the Act 1860 or they could have filed a civil suit. There was absolutely no occasion for a writ petition to have been entertained at such a belated stage and further after more than three years of holding of the elections.
For the reasons aforesaid, we are of the opinion that the appeal deserves to be allowed and the impugned order is liable to be set aside.
Accordingly, the appeal is allowed. The impugned order dated 23.07.2009 passed in Civil Misc. Writ Petition No. 63944 of 2008 is set aside and the writ petition filed by respondents 4 to 7 stands dismissed.