Committee of Management, Yuvak Laghu Madhyamik Vidyalaya and Another vs State of U.P. and Others

Rakesh Tiwari, J.—Heard Sri Ashok Khare, senior counsel assisted by Sri Anup Kumar Srivastava for the petitioners, Sri R.P. Singh, advocate appearing for respondent No. 4 as well as the standing counsel representing respondent Nos. 1, 2 and 3.

This writ petition is directed against an order dated 25.8.2007, passed by Assistant Registrar, Firms, Societies and Chits, Gorakhpur which has been appended as Annexure-17 to the writ petition whereby the Assistant Registrar has discarded elections of the petitioner and has accepted the elections that have been set up by the contesting respondents.

The petitioners seek relief of quashing the aforesaid order dated 25.8.2007 as well as a direction in the nature of mandamus commanding the respondents not to interfere with the functioning of petitioner as management of Yuvak Laghu Madhyamik Vidyalaya, Majhwalia No. 1, Deoria.

The contention of the counsel for petitioner is that the order impugned has been passed in violation of principles of natural Justice. The hearing was concluded by the Assistant Registrar on 17.8.2007. Just after close of the hearing, the Assistant Registrar permitted the parties to file documents upto 21.8.2007. The documents so filed by the respondents on 21.8.2007 have been taken into account in passing the order impugned with no opportunity to the petitioner to object to the same. Attention of the Court is drawn to paragraphs 30. 35 and 36 of the writ petition and its reply in paragraphs 22, 26 and 27 of the counter- affidavit. The factum of such procedure having been followed is also apparent from the impugned order wherein it is recorded at page 84 that hearing was concluded on 17.8.2007 and thereafter opportunity was given to file original documents upto 21.8.2007.

It is stated that the procedure followed is illegal and reliance in this regard is placed upon Ram Adhar Shastri and Ors. v. Deputy Director of Education, Allahabad and Ors. 1987 UPLBEC 14.

It is next urged that the impugned order has come into existence in pursuance of the direction issued by the High Court by judgment dated 4.4.2007, passed in Writ Petition No. 53092 of 2006 connected with W.P. No. 55780 of 2006, copy of which is Annexure-16 to the writ petition. The said judgment set aside the earlier orders passed by the Assistant Registrar and the matter was remitted for fresh decision in accordance with the observations contained in the said judgment. Operative part of the said judgment reads as under:

Since the issue with regard to the legality of the elections pleaded by Vidhya Devi and Harinam Singh has not been examined by the Assistant Registrar nor any list of officebearers has been registered u/s 4 for the current year, it is necessary to direct the Assistant Registrar to examine the legality of the elections pleaded by the parties within four weeks from the date a certified copy of this order is filed before him, after affording opportunity of hearing to the parties concerned. In case he comes to a conclusion that there exists a bona fide dispute qua the office-bearers of the society, he shall refer the same u/s 25 (1) of the Societies Registration Act to the Prescribed Authority. The Prescribed Authority in turn shall decide the reference so made after affording opportunity of hearing to the parties preferably within six weeks thereafter. It is only after the legality of the elections pleaded by the parties is examined by the competent authority that the list of officebearers shall be registered u/s 4 of the Societies Registration Act.

Till then status quo as of date with regard to the control over the society shall be maintained. However, no major expenditure shall be incurred as well as no policy decision shall be taken by any of the parties.

This Court may record that it will not be necessary for the party possessing the renewal certificate of the society to return the same to the Assistant Registrar till the legality of the elections of the office- bearers is finally adjudicated.

Both the writ petition stands disposed of finally.

Reliance has also been placed upon the observations in the above quoted judgment where a positive direction is stated to have been issued that the Assistant Registrar will consider as to whether there exists a bona fide dispute and in case it existed then the matter would be referred to the prescribed authority u/s 25 (1) of the Societies Registration Act.

It is submitted that in passing the order impugned the Assistant Registrar has failed to advert himself to the directions so issued by this Court and record any finding with regard to the nature of the dispute and as to why the matter was not being referred for adjudication u/s 25 (1) of the Societies Registration Act.

It is lastly urged that the order impugned is an order passed completely without jurisdiction. A bare perusal of the order would demonstrate that he is deciding the dispute with regard to two rival elections. No power exists in the Assistant Registrar to take any such decision and instead it was incumbent upon him to have referred the matter to the prescribed authority u/s 25 (1) of the Societies Registration Act.

Counsel for the respondent per contra submitted that under the Judgment dated 4.4.2007 (passed by Hon. Mr. Justice Arun Tandon), the Assistant Registrar was directed to examine the legality of the elections pleaded by the parties. This was first direction and the second direction was that in case Assistant Registrar comes to a conclusion that there exists a bona fide dispute, he shall refer the same u/s 25 (1) of the Societies Registration Act to the prescribed authority. In view of the findings recorded by the Assistant Registrar in the impugned order and there being no bona fide dispute, the Assistant Registrar has not referred the dispute before the prescribed authority.

The Assistant Registrar has recorded categorical findings of fact in the order impugned, that in the proceeding book produced by Smt. Vidya Devi (petitioner) page Nos. 3 and 4 have been added and further there is no valid document to show that proceedings dated 8.10.1999 and 18.9.1993 (in which the petitioners claims to have been elected as Deputy Manager and Manager respectively) were presided by whom and when? There is a clear finding that Smt. Vidya Devi petitioner is not enrolled as member by a recognized and valid Manager. The Assistant Registrar has considered the documents filed by Vidya Devi, notary affidavit of the then President Sri Tej Narain Singh and found that all the papers pertaining to elections since 1990 onwards have been submitted for the first time in 2005 and are apparently manipulated, fraudulently manufactured and are against the rules.

It is stated that the petitioner has tried to raise highly disputed questions of fact which cannot be decided in writ jurisdiction under Article 226 of the Constitution of India. The petitioner has atleast two effective alternative remedies, i.e. (1) by raising a dispute before the Prescribed Authority in case she commands support of the requisite members, and (2) by filing a civil suit. There is a catena of decisions to this effect. Reference has been placed by the counsel for the respondent upon judgment dated 28.4.2006, passed by this Court in Writ Petition No. 7284 of 2005. wherein it has been held that in election matters where disputed questions of fact are raised, writ petition under Article 226 would not be remedy and the only remedy is by filing election petition or civil suit.

Attention of the Court is further drawn to latest judgment in Satya Narain Tripathi and Ram Krishn Yadav Vs. State of U.P. and Mahendra Nath Dubey, where it has been held that petitioner can challenge the election and membership dispute either by way of suit or u/s 25 of the Societies Registration Act.

It is also submitted that in the case of Committee of Management. Kisan Shiksha Sadan v. Assistant Registrar and Ors. 1995 (2) UPLBEC 1242, it has been held that the Assistant Registrar u/s 4 of the Society Registration Act has Jurisdiction to decide whether it to be referred or not. Any doubt or dispute relating to election of the members of the Management Committee of the society to the Prescribed Authority and the Registrar has to apply his mind to the facts of the case and take a decision. It has further been held that if an objection is raised about the membership of a person it is the duty of the Registrar for his own administrative purpose to inquire into whether the person concerned is a member of the society or not and if the Registrar comes to a conclusion that such a person is not the member of the society, then he is not under legal obligation to refer the dispute or doubt relating to his election to the Prescribed Authority. Paragraph 3 of the aforesaid judgment reads as under:

Having regard to the provisions of the Act, we see force in the submission of the learned Counsel for the respondents. Section 4 of the Act provides that a list of members of the managing body of a society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the society raise a doubt or dispute relating to the election of the members of managing body or society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a society to the Prescribed Authority, the Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances as he has done in the present case. If an objection is raised about the membership of a person, in our view, it is the duty of the Registrar for his own administrative purpose to enquire into whether the person concerned is a member of the society or not. If the Registrar comes to the conclusion that such a person is not a member of the society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision. In the present case, the Registrar has applied his mind to the facts of the case to find out whether the second appellant herein was not a member of the Shiksha Sadan. He found that he was not even a member of Society. It is a pure question of facts. If any person feels aggrieved by such a decision, the proper course open to him is to approach the civil court and seek appropriate relief. The registrar is bound by the decision of the civil court and his decision will be subject to the decree passed by the civil court.

It is emphasised that similar view has been taken by his Lordship (Hon''ble Mr. O.P. Garg as he then was) in the case of Sri Ram Laxmi Narain Marvari Hindu Hospital and another Vs. Assistant Registrar, Firm''s, Societies and Chits and another, in paragraphs 7 and 8 of the judgment which reads as under:

Now the question is whether by raising a farce or fake dispute by a rival claimant, can power of Registrar u/s 3A and 4 of the Act be throttled and rendered otiose. This aspect of the matter came to be considered in the Division Bench decision of this Court in Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and Anr. v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. (1995) 2 UPLBEC 1242; and the decision in Special Appeal No. 22 of 1996. Shiksha Parishad, Nagwa, Ballia and Anr. v. Dy. Registrar, Firms, Societies and Chits and Ors. decided on 28.10.1997. The observation made in para 3 in Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and another (supra) may for the sake of clarity and better understanding, be extracted below:

Section 4 of the Act provides that a list of members of the managing body of a society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the society raise a doubt or dispute relating to the election of the members of managing body or society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a society to the Prescribed Authority, the Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances as he has done in the present case. If an objection is raised about the membership of a person, in our view, it is the duty of the Registrar for his own administrative purpose to enquire into whether the person concerned is a member of the society or not. If the Registrar comes to the conclusion that such a person is not a member of the society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision.

A reading of the above observations would indicate that there has been a positive shift from the earlier stand and attempt has been made to reconcile the field of operation of the two provisions, i.e., Sections 4 and 25 of the Act. A slight deviation has come to be made by interpretatory process by this Court that the Registrar has the power u/s 4 to enquire into the question whether the person concerned is member of the society or not. If the Registrar comes to the conclusion that such a person is not a member of the society, then he is not under any obligation or duty to refer the dispute or doubt relating to his election to the Prescribed Authority.

In Kranti Kumar Chaturvedi and Ors. v. District Inspector of Schools, Kanpur and Ors. 1995 (3) ESC 166 (All) : 1994 (3) AWC 1770 , a Division Bench of this Court has clearly ruled that Section 25 of the Act would be attracted if there is dispute between two rival parties each of whom is claiming to be validly elected body; and that the Section is also attracted when a party challenges the legality or otherwise of the election of particular act of office-bearer of the society on the grounds enumerated in Section 25 of the Act. The Division Bench has further ruled that Section 25 would be attracted to a dispute of the nature aforesaid; only when there la no dispute in respect of registration of society or its renewal of certificate of registration. A reference may also be made to another decision of the Division Bench in Shambhu Kumar Tripathi Vs. The Assistant Registrar, Firms, Societies and Chits and another, in which it was observed:

...It is evident from Section 3A that renewal of the certificate of registration of a society is within the exclusive Jurisdiction/domain of the Registrar which term includes Assistant Registrar, Firms, Societies and Chits. The power to renew a certificate of registration being expressly and exclusively conferred upon the Registrar, the Registrar would be deemed to possess all incidental and ancillary powers as may be considered necessary for an effective exercise of the power u/s 3A of the Act.

There are plethora of decisions delving on the consideration which would apply for invoking the powers by two independent authorities u/s 4 as well as Section 25 of the Act. It would be a mere tautology to refer all such decisions. The law as it stands is that the Registrar has to take a workable administrative decision to recognize the newly constituted Committee of Management or its office-bearers so that smooth functioning of the Society is not hampered. This determination is, of course, subject to the ultimate decision by the civil court. Nevertheless, if a bona fide dispute or doubt with regard to the election of the rival committee of management of the officebearers is raised, in that event the Registrar would keep his hands off and relieve himself by performing statutory duty of making a reference u/s 25 of the Act. Should the Registrar fail to make a reference on account of his callousness, obstinacy or on account of his being imbued with a feeling to usurp the jurisdiction of another authority, in that event the Legislature has, with a view to guard against such arbitrary action, made a provision that the dispute apart from the power of reference by the Registrar, may be taken by rival claimants before the Prescribed Authority for decision provided the aggrieved persons are in a position to muster the strength of one fourth of the members of the registered society. If the dispute raised by the petitioner is really bona fide in that event, there is nothing to prevent them from approaching the Prescribed Authority to decide the dispute between the rival parties.

Attention of the Court has further been drawn to a Division Bench judgment in the case of The Committee of Management of Rashtriya Junior High School (Society) Vs. The Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Babhaniayaon Shiksha Samiti and Birendra Kumar Shukla alleged Manager of the Committee of Management of Rashtriya Junior High School, of the judgment it has been held:

It is the standard law that if any bona fide dispute as to two rival Committees of Managements is shown to be in existence to the Registrar or Assistant Registrar, a reference by him of the dispute to the Prescribed Authority follows as a matter of course. But a bona fide dispute does come into existence merely because one member even if he is a founder member, chooses simply to say or ascertain that he has a rival Committee and therefore, a bona fide dispute as to Management exists. Sufficient prima facie material must be produced before the Registrar before he can validly exercise his jurisdiction of referring the dispute. He must simly put be satisfied that there is something to refer and he is not merely sending litigations before the Prescribed Authority, without there being even a shadow of real cause for litigation.

Same view has been taken in Committee of Management, Dwarika Prasad Higher Secondary School v. Deputy Director of Education, Azamgarh Region, Azamgarh.

In the case of Committee of Management, Nal Dev Kul Dev Purva Madhyamik Vtdyalaya v. Assistant Registrar, Firms, Societies and Chits, Azamgarh 1997 (2) UPLBEC 1009 : 1997 (2) AWC 2.248 (NOC), it has been held by Hon. single Judge that the Assistant Registrar is not a rubber stamp or merely a Post Office. He can decide the controversy raised before him and not supposed to refer it mechanically to Prescribed Authority.

After hearing counsel for the parties at length and perusing the record as well as provisions of the Act, this Court is of the considered view that u/s 4 of the Societies Registration Act, the Assistant Registrar has to take a decision. Here in the given case though the Assistant Registrar had jurisdiction to decide the question but under the order passed by the High Court (Hon''ble Mr. Justice Arun Tandon) dated 4.4.2007, the Assistant Registrar was clearly directed io examine the validity of the elections pleaded by the parties and he was given a discretion to refer the dispute if a bona fide dispute exists. The petitioner has misconstrued and misinterpreted the direction contain in the judgment dated 4.4.2007. There was no absolute direction that in any case the Assistant Registrar will refer the dispute. On the contrary the reference was based on the conclusion of the Assistant Registrar to be arrived after hearing the parties. In the given case the Assistant Registrar has given a categorical finding that no genuine bona fide dispute exists, so the argument that dispute should have been referred to the Prescribed Authority is wholly misconceived.

The order impugned is strictly in conformity with the High Court''s Judgment. The Assistant Registrar decided the validity of the election pleaded by the parties and he has recorded categorical findings of fact. The petitioner is trying to raise highly disputed questions of facts which cannot be decided in the writ jurisdiction. There is a consistent view that only genuine dispute can be referred to the Prescribed Authority. Reference may be made to the judgment in Committee of Management, Sarvodaya Mandal and Others Vs. Assistant Registrar, Firms, Societies and Chits and Others,

So far as the procedure adopted by the Assistant Registrar is concerned, it is submitted that the Assistant Registrar in order to verify the genuineness of the original documents/papers, directed the parties to produce the originals. Moreover the petitioner did not raise any objection and she acquiesced. Now she is raising this objection. Moreover the petitioner has not pleaded any prejudice or even mala fide. She has not stated as to how the direction given by the Assistant Registrar directing the parties to file originals, affected the merits of the case.

For the reasons stated above, the writ petition lacks merit and is liable to be dismissed and is accordingly dismissed.