Laxmi Narain Miglani vs State of Haryana and Others

Rakesh Kumar Jain, J.—The respondent No. 2 is a Society. According to Rule 3 of the Rules and Regulations of the Society, there would be 25 members, each shall contribute Rs. 1000/- to Society in lumpsum as membership fee and no member shall hold any office of profit under the Society and would have any business connection with the Society or the institutions affiliated with it. A person would be ceased to be a member of the Society in case of resignation, unsoundness of mind, conviction by a court of law for moral turpitude, non-payment of membership fee, death or absence from three consecutive meetings without prior intimation. He would also cease to be a member for breach of trust or undesirable activities detrimental to the interest of the Society. It is alleged that vide Resolution No. 4 dated 25.10.1998, the petitioner was nominated and became member of the Society which held its last election of the Executive Committee on 8.1.2010.

On 17.12.2012, the Society held a meeting and resolved to hold the elections before 7.1.2013. Apropos a letter dated 18.12.2012 was sent to respondent No. 4 with a request to depute his nominee on the date of election i.e. 4.1.2013.

However, Bim Sain Setia and Radhey Shyam Kunugar, members of the Society lodged a complaint that their names have not been included in the list of the Members of the Society on which respondent No. 4 passed an order dated 31.12.2012, withholding the election process till the disposal of their complaint. The Society, after including names of the aforesaid two persons, sent a revised list of members to respondent No. 4 on 7.1.2013. Thereafter, a representation signed by seven members of the Society was made alleging financial irregularities committed by the President and two members namely, K.C. Nagpal, Ashok Nagpal and the petitioner. They requested that their membership be terminated u/s 73 of the Haryana Registration and Regulation of Societies Act, 2012 [for short the Act]. They also requested that the existing body of the Society may not be allowed to hold the election of the Society and in the meantime Administrator maybe appointed to manage the affairs of the Society. On 22.1.2013, respondent No. 4 in exercise of power conferred u/s 39(10) of the Act ordered for appointment of an Administrator and vide order dated 23.1.2013 appointed Shri Ashok Kumar Bishnoi, HCS (Retd.) as an Administrator of the Society. However, Shri Ashok Kumar Bishnoi, HCS (Retd.), tendered his resignation on 25/28.1.2013 to respondent No. 4. Since, the elections were not being held, therefore, petitioner along with nine members of the Society approached this Court through CWP No. 3614 of 2013 for issuance of a direction to hold the elections. Various interim orders were passed by this Court in the said writ petition from to time and on 8.4.2013, following directions were issued:--

(i) Mr. Babu Ram Gupta, Advocate, of this Court would be the enquiry officer in place of Mr. R.S. Rawal to conclude the enquiry within ten weeks from the date of receipt of certified copy of this order. He would be paid as agreed by Mr. Malik and Mr. Jain an honorarium of Rs. 1.00 lac and Rs. 10,000/- as secretarial charges for his time and effort. The honorarium/secretarial charges would be borne equally by both the sides. He would submit his report at the end often weeks.

(ii) Mr. Jindal, learned DAG, Haryana would cause the entire original enquiry files to be placed in the hands of Mr. B.R. Gupta by 12.4.2013 to enable Mr. B.R. Gupta to take stock of the situation and to proceed in the matter in such manner as lies in his wisdom within the given time frame. I have no doubt that Mr. L.N. Miglani and Mr. Ashok Nagpal would fully cooperate with Mr. B.R. Gupta and help him in every manner. The venue of the enquiry will be as Mr. B.R. Gupta decides. It will, however, be seated at Chandigarh as wished by him.

(iii) The enquiry reports would be placed in the hands of the Administrator forthwith on conclusion for further necessary action, as well as before this Court on the opening of the Court after the vacations.

(iv) The Administrator appointed by the State Government would continue to manage the affairs of the Society in accordance with the Act and the Rules in the best interest of the Society till the newly elected executive committee/governing body joins. Thereafter, the Administrator would cease to function and handover charge to the newly elected members upon declaration/notification of result.

(v) Both the cases be now listed for further hearing on 1.7.2013.

The order dated 8.4.2013 was challenged by the petitioner and other members of the Society in LPA No. 880 of 2013, in which following order was passed:--

This Letters Patent Appeal is directed against an order dated 8.4.2013, whereby the learned Single Judge has issued certain directions in a matter pertaining to election of Executive Committee of Inder Bhan (Leiah) Bharti Educational Society, Panipat. The interim directions pertain to conclusion of an enquiry against the members of the Society in a time bound manner and thereafter to conduct the election under the supervision of the Administrator who has already take over the Society. The grievance of the appellants is that u/s 39 of the Haryana Registration and Regulation Societies Act, 2012 (for short ''the 2012 Act''), there is no bar against contesting of election of the Society only because some enquiry has been initiated against such member. It is urged that even if there is a finding of alleged financial irregularities in running the affairs of the society, still member cannot be deprived of participation in the election.

After going through the order under appeal, we are of the view that the learned Single Judge has nowhere held that a member guilty of financial irregularities will not participate in the election. The learned Single Judge, has merely observed that it would be more graceful that firstly the enquiry should be concluded before the elections are held. Since the matter is listed before the learned Single Judge, for 1.7.2013, the appellants would be at liberty to urge that notwithstanding the outcome of the enquiry, election is required to be held as per law or that they be allowed to participate in the election. With liberty afore-mentioned, dismissed.

On 7.7.2013, the enquiry officer submitted his report and recorded a finding that the petitioner was having business connection with LB. College, Panipat, the institution controlled and managed by the Society, which is a clear cut violation of Rule 3(v) of the Rules and Regulations of the Society. Respondent No. 5 served show cause notice on 18.9.2013 on the basis of enquiry report dated 7.7.2013 to show cause as to why his membership from the Society be not cancelled/ceased. According to the petitioner, he sought time on 24.9.2013 to file reply to the show cause notice but without waiting for the final outcome of CWP No. 3614 of 2013 and the request of the petitioner for granting more time to file reply, respondent No. 5 passed order dated 3.10.2013 recommending respondent No. 4 to terminate the membership of the petitioner immediately. It also recommended to take fresh list of members containing the names of respondent No. 7 to 24 as per the Rules. The petitioner, thus, made a detailed representation to respondent No. 4 against the recommendation of respondent No. 5.

The CWP No. 3614 of 2013 was disposed of on 27.11.2013 as infructuous because of a statement made by the State counsel that they are absolutely prepared to hold the elections. It is alleged that election process was circulated excluding the name of the petitioner from the list of eligible members/voters of the Society which lead to the filing of CWP No. 26733 of 2013 by the petitioner to challenge order dated 3.10.2013 as well as public notice dated 29.11.2013. The said writ petition was withdrawn by the petitioner. However, the Court imposed the cost of Rs. 50,000/- on account of concealment of facts. The order passed on 10.12.2013 in CWP No. 26733 of 2013 is reproduced as under:--

Learned counsel for the petitioner contends that vide Annexure P-7, the Additional Deputy Commissioner had recommended action to be taken against the petitioner on account of the misconduct which had been established on the strength of an enquiry conducted by the retired District and Sessions Judge which also established violation of Rule 3(v) of the Memorandum and Articles of Association of the Society.

Learned counsel for the petitioner further contends that no action had been taken by the Society pursuant to the recommendations contained in Annexure P-7 but yet his name had been removed from the list of eligible candidates entitled to vote and participate in the proceedings of the Society by the District Registrar Cooperative Societies.

At this stage when the Court was about to issue notice of motion, Mr. Arun Jain, Senior Advocate assisted by Mr. Harkesh Manuja, Advocate appears and stated that there has been a gross misstatement and concealment of facts.

The petitioner has not mentioned that subsequent action has already been taken by the Society and notice has been issued to the petitioner to appear before the Deputy Registrar on 09.12.2013. Learned senior counsel further states that the affected persons have not been impleaded as party and on a prior occasion also when the petitioner approached this Court by way of writ petition he had done similarly and there is recorded finding to this effect which is evident from the petition itself where the Coordinate Bench of this Court had recorded a finding about the petitioner''s having concealed facts from the Court.

The Court finds that the repeated attempts of the petitioner at concealment of facts in writ petitions filed are an attempt to overreach the Court and, therefore, the conduct is reprehensible and contumacious on the face of it.

At this stage, learned counsel for the petitioner prays for permission to withdraw the present petition.

Permitted to do so.

Dismissed as withdrawn with costs of Rs. 50,000/- to be deposited by the petitioner with the Mediation and Conciliation Centre of this Court within a period of one month from today. Copy of this order be dispatched to the Chief Judicial Magistrate, Panipat who shall ensure the recovery of costs in accordance with law by taking necessary steps which may include coercive steps as well. The withdrawal of the petition would have no bearing on the costs component imposed. However, the filing of this petition and the flowing consequences of this order would not effect the proceedings pending before the Deputy Registrar.

The petitioner was asked by respondent No. 4, vide notice dated 3,12.2013, to deposit fee of Rs. 1000/- by way of demand draft in favour of District Registrar, Firms and Societies, Panipat and an affidavit on stamp paper of Rs. 10/- to the effect that the facts which he had disclosed in the application dated 2.12.2013, are true and correct as per his knowledge and nothing has been concealed therein. The petitioner, instead of submitting the aforesaid documents, disputed the competence of respondent No. 4 to ask for fee of Rs. 1000/- and also the affidavit, rather he asked for staying the process of election. Consequently, respondent No. 4 passed order dated 10.12.2013, which reads as under:--

In this connection, it is intimated that a representation/petition was received from you side regarding not include your name in the list of eligible members of Inder Bhan (L) Bharatri Education Society. You had not furnished the required fee i.e. one thousand along with your representation/petition which was required as per Haryana Societies Registration & Regularization Act, 2012. You were asked to deposit required fee and also directed to appear before undersigned along with documents/evidence on 9.12.2013 vide this office memo No. 2633, dated 3.12.2013. Neither you have deposited required fees nor you appeared before the undersigned on 9.12.2013 to prove eligibility of your membership. A representation was received on 9.12.2013 in which you have requested to stop all the process in view of this office letter No. 3.12.2013 in interest of justice. Moreover it has came to my notice that a petition in above same matter was filled by you in Hon''ble High Court which has been dismissed by Hon�ble Court.

In view of above your representation/petition can not be considered and same has been filed. This is for your kind information.

The petitioner has thus challenged order dated 10.12.2013 amongst the earlier proceedings in this writ petition and has averred in paragraph No. 32 of the present writ petition that any order passed by respondent No. 4 is appealable u/s 79 of the Act before the Registrar/respondent No. 3 and any order passed by the Registrar is appealable before the Registrar General. However, it is alleged that the writ petition is being filed because the remedy of appeal is not efficacious in the given circumstances.

Learned counsel for the petitioner has submitted that the membership of the Society may be ceased in terms of Regulation 3(vii). Respondent No. 4 and 5 have no jurisdiction to pass the order of secession of the membership of the petitioner. It is also argued that respondent No. 4 has been unnecessarily impressed by the dismissal of the writ petition vide order dated 10.12.2013 passed in CWP No. 26733 of 2013 and has also submitted that if the said order was passed on 10.12.2013 then how could it be in the knowledge of respondent No. 4, who has passed the order on the same day.

I have heard learned counsel for the petitioner in detail and examined the available record with his able assistance.

The petitioner has invoked Rule 3 of the Rules and Regulations of the Society, which is reproduced herein for ready reference:--

Membership of the Society:--

(i) The Society shall consist of 25 members.

(ii) A member shall not be of less than 25 years of age and shall be from a family (Paternal side) originally belonging to Leiah Tehsil (now in Pakistan).

(iii) A member, hereafter, shall have passed at least the Matriculation/Higher Secondary or equivalent examination.

(iv) Each member shall contribute Rs. 1,000/- to the Society in lumpsum as Membership fee.

(v) No member shall be holding any office of profit under the Society, nor in any of its affiliated institutions. Also he or his business concern(s) shall not have any business connection with any of its institutions.

(vi) A member shall not be on active roll of any political party.

(vii) A person shall cease to be a member of the Society on: a) Resignation; or b) being of un-sound mind; c) conviction by a court of Law for moral turpitude; or d) nonpayment of membership fee or e) death; or f) absence from three consecutive meetings without prior intimation. (viii) A person shall also cease to be a member for breach of trust or undesirable activities detrimental to the interest of the Society. For this purpose, a Resolution shall have to be passed at a special meeting of the Society attended by at least 3/4th of the members. At least 2/3rd of votes polled at such a meeting will be required to pass such a resolution. In case, the quorum of 3/4th is not complete, the meeting shall stand adjourned and shall again be held at the same time and same day after a fortnight. A. notice to this effect shall be sent within two days of the original meeting. In the adjourned meeting: 50% of the members shall form the quorum and the decision, will be that of the majority.

(vii) A person shall cease to be a member of the Society on: a) Resignation; or b) being of unsound mind; c) conviction by a court of Law for moral turpitude; or d) nonpayment of membership fee or e) death; or f) absence from three consecutive meetings without prior intimation. (viii) A person shall also cease to be a member for breach of trust or undesirable activities detrimental to the interest of the Society. For this purpose, a Resolution shall have to be passed at a special meeting of the Society attended by at least 3/4th of the members. At least 2/3rd of votes polled at such a meeting will be required to pass such a resolution. In case, the quorum of 3/4th is not complete, the meeting shall stand adjourned and shall again be held at the same time and same day after a fortnight. A notice to this effect shall be sent within two days of the original meeting. In the adjourned meeting: 50% of the members shall form the quorum and the decision, will be that of the majority.

The abovesaid Rule shows that in order to become a member of the Society, each member has to contribute Rs. 1000/- to the Society in lumpsum as membership fee and it prohibits a member to hold any office of profit under the Society or in any of its affiliated institution or to have business relations with the Society and its institutions. It also provides that a member shall not have any active roll in any political party. There are provisions where a person would be ceased to be a member of the Society if he resigns; becomes a person of unsound mind; convicted by a court of Law for moral turpitude; if he does not pay the membership fee; dies or remains absent from three consecutive meetings without prior intimation. He would also cease to be a member of the Society because of breach of trust or undesirable activities detrimental to the interest of the Society which would be decided by way of a Resolution as per the strength mentioned in Rule 3(viii). In the writ petition bearing CWP No. 3614 of 2013 wherein the petitioner had prayed for holding the elections of the managing committee, new issues were cropped up about the entitlement of the petitioner to remain as a member of the Society for which enquiry was ordered to be conducted through Mr. Babu Ram Gupta (Retd. District and Sessions Judge), who has submitted his report on 7.7.2013, clearly holding that the petitioner is having business connection with I.B. College, Panipat (an institution controlled and managed by the Society) which is a violation of the Rules and Regulations of the Society. The said report has not been challenged so far by the petitioner and the writ petition bearing CWP No. 3614 of 2013 was dismissed as infructuous at the first instance on the ground that the State has already prepared itself to hold the election of the Society. In any case, subsequent writ petition bearing CWP No. 26733 of 2013 was dismissed by this Court with the following observations:- The Court finds that the repeated attempts of the petitioner at concealment of facts in writ petitions filed are an attempt to overreach the Court and, therefore, the conduct is reprehensible and contumacious on the face of it.

Faced with this situation, the petitioner withdrew the writ petition, though he was allowed to do so but with the cost of Rs. 50000/-. However, in the said order, it was observed that the filing of the petition and the flowing consequences of the said order would not effect the proceedings pending before the Deputy Registrar/respondent No. 4. When respondent No. 4 asked the petitioner to deposit Rs. 1000/- as membership fee and an affidavit, ignoring the recommendations dated 3.10.2013 by the Administrator, wherein he had asked for terminating the membership of the petitioner immediately, the petitioner still challenged the order of respondent No. 4 without any rhyme or reason and did not deposit any membership fee as a result of which the order dated 10.12.2013 has been passed. Moreover, the petitioner did not even appear before respondent No. 4 to prove his eligibility of membership rather requested for staying the process of election. In these facts and circumstances, I am of the considered opinion that there is no error in the order passed by respondent No. 4 dated 10.12.2013. Moreover, the writ petition by it self is not maintainable in view of the remedy of appeal available u/s 79 of the Act as mentioned by the petitioner himself.

In view of the aforesaid discussion, present writ petition is thus hereby dismissed.