Prateek Garg and Others vs State of U.P. and Others

Pankaj Mithal, J.—1. The dispute in the present writ petition relates to Krishna Charitable Trust Society, Ghaziabad (in short ''Society'').

The order in respect of the Society has been passed by the Deputy Registrar, Firms, Societies and Chits on 2.1.2014 in pursuance to the direction of this Court dated 25.10.2013 passed while disposing of Writ Petition No. 40592 of 2013 (Prateek Garg and 5 others v. State of U.P. And others).

The above order passed by the Deputy Registrar has been impugned in this writ petition and a further prayer has been made for quashing of the two resolutions dated 10.3.2012 and 24.3.2012 passed by the Managing Committee of the Society.

Sri Shailendra, learned counsel appearing for respondent No. 3, Secretary of the Society raises a preliminary objection that the dispute which has been adjudicated by the Deputy Registrar was not within its domain. Therefore, even if the High Court had issued direction upon him to decide the same it was beyond its competence. The petitioners for the same relief had filed writ petitions earlier and they have been dismissed and, as such, the Court could not have directed the Deputy Registrar to decide about the complaint alleged to have been made by the petitioner.

The petitioners are all life members of the society. It appears that two resolutions were passed by the Managing Committee of the Society on 10.3.2012 and 24.3.2012 for amending its bye-laws.

The petitioners filed Writ Petition No. 40592 of 2013 complaining about the amendment of the bye-laws. This Court taking note of the amendments in the bye-laws and the complaint of the petitioners, without entering into merits of the controversy involved, disposed of the writ petition with the direction to the Deputy Registrar to take decision in the matter expeditiously,. It is in pursuance of the above order that by the order dated 2.1.2014 the Deputy Registrar has rejected the complaint of the petitioners dated 2.5.2013.

This Court is not sitting in appeal over the decision of this Court dated 25.10.2013. It is, therefore, difficult for me to hold that the Court was not competent to direct the Deputy Registrar to decide the matter. The order of the Court as it was final, was to be carried out by the Deputy Registrar and this is exactly what has been done by him in passing the impugned order.

The petitioners through this petition have challenged the correctness of the aforesaid order dated 2.1.2014 passed by the Deputy Registrar. This order was never impugned by the petitioners in any of the earlier writ petitions. This order rejects the complaint of the petitioners leaving no remedy to the petitioners except to assail it by invoking writ jurisdiction. Therefore, the writ petition in so far it challenges the above order is maintainable and cannot be thrown out on any preliminary objection.

The correctness of the resolution dated 10.3.2012 and 24.3.2012 passed by the Managing Committee of the Society are only consequential reliefs and the adjudication of their correctness would only arise before this Court if the order passed by the Deputy Registrar is held to be illegal.

Learned counsel for the petitioners during the court of hearing had accepted that the petitioners are more concern with the order dated 2.1.2014 passed by the Deputy Registrar and that their relief in the writ petition is basically confined to the quashing of the same.

In view of the above, it cannot be said that the present writ petition is not maintainable for the reason that the some earlier writ petition concerning directions to decide complaints or representation against the amendments in the bye-laws of the Society have been rejected in the past.

Sri Anurag Khanna, Senior Counsel assisted by Sri Syed Fahim Ahmad, learned counsel for the petitioners has argued that the impugned order passed by the Deputy Registrar is based upon the report of the handwriting expert dated 8.12.2013. The said report was submitted by respondent No. 3 after conclusion of hearing of the matter. The copy of the said report was not supplied to the petitioners and they were not given any opportunity to adduce any evidence in respect thereof. The report is not by a competent person as the alleged expert who has given the report does not possess any qualification of an expert.

Sri Shailendra, learned counsel for the respondent No. 3 in this connection submitted that the petitioners themselves had asked for the report of a handwriting expert and that if such a report has been brought on record and has gone against them they cannot turn around to say that the report was not required and that it is incorrect.

A bare perusal of the impugned order establishes that the Deputy Registrar solely on the basis of the report of the handwriting expert held that the resolutions of the Managing Committee of the Society dated 10.3.2012 and 24.3.2012 bears signatures of R.C. Sengar and, as such, are valid and there is no basis for complaint of the petitioners dated 21.5.2013, which stands rejected.

The impugned order reveals that the date of hearing in the matter, pursuant to the order of the High Court, was 29.11.2013. The petitioners in paragraph 26 of the petition have clearly stated that the last hearing was done on 29.11.2013 and behind their back, without supplying any copy, the report of the handwriting expert was obtained on 8.12.2013. In paragraph 32 of the petition it has been stated that the aforesaid report is not inconformity with Section 45 (wrongly types as 47) of the Evidence Act, 1872. In paragraph 5 of the supplementary affidavit of the petitioners dated 26.5.2014 it has been stated that Sanjeev Tomar who has submitted the above report is not recognized by any authority as an expert and, therefore, his credential as an handwriting expert are seriously doubted.

The respondent No. 3 in response to the writ petition has filed two counter affidavits; one counter affidavit has been filed on 31.3.2014 and the other on 7.4.2014. Sri Shailendra states that the earlier counter affidavit basically raises some preliminary points and the actual counter affidavit is one which was filed on 7.4.2014 as it contains para-wise reply to the averments made in writ petition.

The Court is noticing a peculiar habit of filing repeated affidavits by the same party in response to the writ petition. In Ishwar Singh and others v. Surender Bajaj and others , 2014(7) ADJ 544 it has already been held by me that the same party cannot be permitted to file successive counter affidavits in response to the writ petition.

In view of the above, I deprecate the practice of filing successive affidavits by the same party and even the filing of supplementary affidavits unless called upon by the Court.

Accordingly, as also agreed by Sri Shailendra, the counter affidavit filed by respondent No. 3 on 31.3.2014 is ignored and the counter affidavit filed on 7.4.2014 is taken into consideration.

The aforesaid counter affidavit in paragraph 49 contains the reply of the averments made in paragraph 26 of the writ petition. It states two things. First, the Deputy Registrar has rightly passed the impugned order. Secondly, reliance upon the expert report has been placed as the petitioner himself in a earlier writ petition No. 40592 of 2013 had made a prayer for obtaining the report of the handwriting expert.

In the previous writ petition referred to above, the petitioners had sought direction for adjudication of their complaint and had offered that the decision may be taken after obtaining the report of a handwriting expert but the Court while disposing of the writ petition has not granted the above relief and had only issued direction to the Deputy Registrar for taking decision in the matter in accordance with law impliedly leaving it open to him to call for report of a handwriting expert, if the facts and circumstances of the case, so permit.

The issue here in this petition is not as to whether the report of the handwriting expert was necessary or not but is quite distinct and simple i.e. whether the principles of natural justice have been violated in placing reliance upon the report of the handwriting expert.

At the cost of repetition, the hearing in the matter was concluded on 29.11.2013; whereas the report of the handwriting expert was submitted on 8.12.2013 thereafter. It was not on record till the conclusion of hearing. The facts in this regard stated in paragraph 26 of the writ petition have not been denied. The petitioners categorically state that the hearing was concluded on 29.11.2013. The respondents No. 3 or the respondents No. 1 and 2 do not deny the same. The petitioners further state that the copy of the report was not supplied to them. There is no denial to it as well.

These facts sufficiently speak that the decision of the Deputy Registrar is based upon a document i.e. report of the handwriting expert, a copy whereof was not supplied to the petitioners and was brought on record after the conclusion of hearing. Non supply of the copy of the report which forms basis of the order and taking it on record after hearing is over results in denying fair opportunity of hearing to the petitioners. The petitioners as such were not given any opportunity to controvert the aforesaid report of the handwriting expert.

In Committee of Management, Madarsa Quasmia Arabia Islamia v. State of U.P. , 2014(5) ADJ 576 His Lordship of this Court has held that where a report submitted by an expert is not provided to a party and the matter is decided on its basis, the order cannot be sustained.

Therefore, on this count alone the impugned order is unsustainable in law.

The other aspect is about the competence of the handwriting expert. It appears that he only has to his credit the decree of B.A., LL.B. with no special qualification in the field of handwriting expert.

Section 45 of the Evidence Act only provides that the Court may take opinions of persons specially skilled in the field of handwriting. It does not lay down any qualification for any such skilled person.

In Ramesh Chandra Agrawal v. Regency Hospital Limited and others , (2009) 9 SCC 709 the Apex Court in dealing with the expert opinion as envisaged under the Evidence Act held that the admissibility of an opinion of an expert depends upon the following three criteria:

"(i) that the expert must be within a recognised field of expertise;

(ii) that the evidence must be based on reliable principles; and

(iii) that the expert must be qualified in that discipline."

It again, however, falls short of laying down or prescribing any qualification for an expert much-less of a handwriting expert.

In these circumstances, it is difficult to comment that the expert here in above possessed the requisite qualifications to be an handwriting expert.

Adverting to the question of jurisdiction of the Deputy Registrar in passing the impugned order, it is needless that the same has been passed by him pursuant to the direction of this Court dated 25.10.2013 passed in Writ Petition No. 40592 of 2013. Therefore, he had no option but to follow the direction and adjudicate the matter. The objection of jurisdiction or that he was not competent to pass it does not appear to have been taken up on behalf of the respondent No. 3 either before this Court while deciding the above writ petition or before the Deputy Registrar. The respondent No. 3, therefore, appears to have acquiesced to the jurisdiction of the Deputy Registrar and cannot be permitted to raise such an objection at this juncture.

A Division Bench of this Court in Siksha Samiti Degree College v. Registrar, Firms Societies, Chits U.P. Lucknow , AIR 1990 Alld. 110 was ceased with a similar matter wherein the amendment of the bye-laws of the society were held to be illegal by the Registrar. In adjudging the correctness of such an order, the Court observed that the question of amendment of the bye-laws of the Society by an illegal or fraudulent means is a matter which is traceable to Section 12-D of the Societies Registration Act and is within the competence of the Registrar.

In view of the aforesaid facts and circumstances, the preliminary objection as raised by Sri Shailendra are overruled and the impugned order dated 2.1.2014 passed by the Deputy Registrar is held to be an order passed in violation of the principles of natural justice.

A writ of certiorari is accordingly issued quashing the same with the direction to the direction to the Registrar/Deputy Registrar, Firms, Societies & Chits, Meerut to follow the order of this Court dated 25.10.2013 passed while disposing of Writ Petition No. 40592 of 2013 (Prateek Garg and 5 others v. State of U.P. And others) with liberty to the parties to raise all possible issues/objections which may be available to them in law before him, who is expected to take final decision in the matter expeditiously, if possible, within next four months from today.

The writ petition is allowed.