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Judgment
Hon''ble Shri Narayan Shukla, J.—All writ petitions are based on common and interconnected facts to decide the common questions involved therein, therefore, they are being considered and decided by way of following common order.
The Society named as ''Lucknow Golf Club'' is a Society registered under The Societies Registration Act, 1860 (In short The Act). Its activities and functions are governed and managed by the Committee of Management elected from amongst the general members of the Society having its tenure of two years. Thus after each and every two years a new Committee of Management is elected to govern its functions. Now it has become fashion to raise the dispute as and when the proceeding of the election of Committee of Management is commenced. In the same very fashion the dispute of election arose in the present Society also at the time of election which was scheduled to be held in the year 2005. The validity of the membership of some of the members was also questioned. The dispute reached this Court for determination through writ petition No. 4201 (MS) of 2005. This Court by means of order dated 22.11.2006 issued following commands;
1 The Registrar, Firms Societies & Chits, U.P. Lucknow shall forward all the applications and representations received by him from the Election Officer or any other member of the Society/ Lucknow Golf Club within a week from the date of receipt of certified copy of this order to the Deputy Registrar of Lucknow region.
2 The Deputy Registrar, Lucknow region, Lucknow in pursuance to the power conferred by sub section 1 of Section 25 of the Societies Registration Act may refer the dispute to the Prescribed Authority within 4 weeks from the date of receipt of the applications from the Registrar. It shall be open to the parties and other members of the Society to make further written submissions to the Deputy Registrar.
3 The Prescribed Authority shall decide the dispute in accordance to law after providing the opportunity of hearing to the parties expeditiously and preferably within a period of three months. He shall proceed to decide the controversy on day to day basis without granting any adjournment and shall send a report to the Registrar/ Deputy Registrar within the time provided by this Court. Thereafter, Registrar/ Deputy Registrar shall pass appropriate order within two weeks.
4 In case, the election of the Society in question is set aside, then the Registrar/ Deputy Registrar shall hold fresh election in pursuance to the power conferred by sub section 2 of Section 25 of the Societies Registration Act expeditiously and preferably within a period of three months.
Pursuant to the aforesaid order the Deputy Registrar, Firm Society and Chits, Lucknow Division, Lucknow (In short Deputy Registrar), by means of order dated 10.1.2007 referred the matter to the Prescribed Authority to decide the dispute u/s 25(1) of the Societies Registration Act. The Prescribed Authority in its decision dated 10.3.2008 arrived at conclusion that the election of the Committee of Management of the Society held on 05.6.2005 suffers from procedural error. Therefore, he declared election as void.
In one hand Mrs. Suchi Anand and others through writ petition No. 3122 (MS) of 2010 have prayed for holding election in accordance with judgment and order dated 22.11.2006 passed by this Court in writ petition No. 4201 of 2005 as well as the order dated 03.03.2008 passed by the Prescribed Authority, whereas on the other hand the Lucknow Golf Club and another through writ petition No. 2009 (MS) of 2008 have assailed the orders dated 10.1.2007 passed by the Deputy Registrar as also the orders dated 10.3.2008 passed by the Prescribed Authority.
It is pertinent to mention here that the order dated 22.11.2006 passed in writ petition No. 4201 (MS) of 2005 was challenged through Special Appeal No. 919 of 2006. The appellate Court considered the matter in detail by means of order dated 08.3.2007. Since the authority of Election Officer, namely, Shri Vijay Dutta was also challenged the appellate Court observed that Shri Vijay Dutta, Election Officer had to consider the full import of the amended provision of the By-laws of the Society and also the desirability of offering an opportunity before cancelling the candidature of a person in absence of any objection and after finalization of nomination. After scrutiny the appellate Court observed that he failed to consider the aspect whether it was open to him to cancel the candidature after finalization of nominations. Since by the Hon''ble Single Judge direction was issued to Deputy Registrar to consider the matter in accordance with Section 25(1) of the Act, the appellate Court also considered the import of Section 25 of the Act and observed that in exercise of power provided u/s 25 of the Act, the Registrar has power to examine the matter and even set aside the election as also to re-conduct the same. It has been further observed that Hon''ble Single Judge simply directing the Registrar to take action u/s 25 has done nothing more than specifying a time scheduled for various steps to be taken in accordance with the provision so as to avoid unnecessary delay in taking decision and further reiterated that the order of Hon''ble Single Judge is not a direction to the Registrar to exercise discretion in particular manner but he has fixed time scheduled for various steps which under the provisions may take place to be complied with within a specific period to avoid necessary delay. Accordingly, appellate Court maintained the writ petition and upheld the order of Hon''ble Single Judge as well as dismissed the appeal.
From both the sides the prominent lawyers of this Court Mr. Anil Tiwari, Senior Advocate as well as Mr. Prashant Chandra, Senior Advocate assisted by learned Advocates having vast experience in the Society''s matter are appeared before this Court and placed very witty arguments.
Mr Anil Tiwari, senior Advocate appearing for the petitioners of writ petition No. 2009 of 2008, by assailing the orders passed by the Deputy Registrar as well as the Prescribed Authority, submitted that before making reference the Deputy Registrar had to apply his mind as to whether any dispute in respect of election arose, where as in the present case the Deputy Registrar has acted mechanically and referred the matter to the Prescribed Authority taking it as a mandate of the Court. Moreso, the Prescribed Authority, in taking decision departed from the principle as laid down u/s 25(1) of the Act as the election of the Officer bearers can be set aside only on the satisfaction of the Prescribed Authority that the ingredients as provided u/s 25(1) of the Act exist. To appreciate his argument the relevant portion of provision of Section 25 (1) of the Act is reproduced herein under;
Disputes regarding election of office- bearers-(1) The prescribed authority may, ona reference made to it by the4 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 office-bearer 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 bearer; or
(b) that the nomination of any candidate has been improperly rejected; or � 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, refusal or rejection of any vote or the reception of any vote which is void, or by any non-compliance with the provisions of any rules of the Society.
---
In light of the aforesaid provisions he submitted that only on availability of any of the ingredients as are provided the Prescribed Authority can set aside the election after recording his satisfaction, whereas the said exercise is absolutely missing in the present case. In support of his submission he cited the following decisions.
(a). Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and another Vs Assistant Registrar, Firms, Societies and Chits, Gorakhpur region, Gorakhpur and another (1995) 2 UPLBEC 1242. The relevant paragraph 3 is quoted 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 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 or was not a member of the Shiksha Sadan. He found that he was not even a member of a 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 tot he decree passed by the Civil Court.
(b) Committee of Management Naldeo Kuldeo Purva Madhyamik Vidyalaya Vs Assistant Registrar (1997) 2 UPLBEC 1009. The relevant paragraph 6 is quoted as under;
Section 25(1) of the Act requires that if there is a dispute with regard to the election of office bearer or continuance in office, then it is incumbent on the Assistant Registrar to refer the same to the Prescribed Authority. The provision contained in the said Section postulate that the reference is to be made if there is existence of a dispute with regard to the election or to the continuance in office of the office-bearers. Unless there is a dispute, the Assistant Registrar is not required to refer the same to the Prescribed Authority. The Assistant Registrar exercises a quasi judicial authority in the matter of grant of renewal. He cannot act mechanically as soon a dispute is raised. It has to apply its mind and find out as to whether there is in existence a dispute or not. Though in the garb of deciding the question of existence of dispute, he is not ampowered to decide the dispute or address himself of the dispute itself, but still then he is authorized to look into the existence of a dispute. His such decision with regard to the existence of the dispute is subject to revision of challenge before the appropriate forum. In exercise of writ jurisdiction this Court can go into and examine whether the Assistant Registrar has overstepped his jurisdiction while coming to a finding that no dispute exists. If it is found that he has so over-stepped, this Court can set it right. In the aforesaid context, the question, therefore, arises as to whether the findings that no dispute exists as arrived at by the Assistant Registrar in the order dated 2nd December 1996 is justified or not. If it is found that the said finding is justified and is within the ambit and scope of the jurisdiction conferred on the Assistant Registrar, then it is not necessary to go into the other question raised by the learned counsel s of either of the parties.
In contrary Mr. Prashant Chandra, learned Senior Advocate appearing for the petitioners of Writ petitioner No. 3122 (MS) of 2010 submitted that once this Court issued direction to the Deputy Registrar to refer the dispute to the Prescribed Authority who was directed to decide the dispute in accordance with law after providing opportunity of hearing to the parties, the Deputy Registrar was under statutory obligation to refer the dispute without any reservation or qualification, which has been done by him. In support of his submission Mr. Prashant Chandra, Senior Advocate cited following decisions.
Committee of Management Rashtriya Junior High School Vs. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and others (2005) 3 UPLBEC 2817. Relevant paragraph 4 is reproduce herein below;
It is the standard law that, if any, bonafide dispute as to two rival Committees of Managements is shown to be in exercise 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 bonafide 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 bonafide 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, simply 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.
After perusal of the judgment quoted herein above, I find that now it is settled law that before referring the matter before Prescribed Authority in exercise of power provided u/s 25(1) of the Societies Registration Act, the Registrar has to apply his mind to the fact of the case and take a decision regarding existence of dispute of election in light of the ingredients as have been provided under the Act. This Court by means of order dated 22.11.2006 passed in writ petition No. 4201 (MS) of 2005 also provided liberty to the Registrar to refer the dispute as the parties were made open to make their submissions before Deputy Registrar, whereas in the present case, upon perusal of the order passed by the Deputy Registrar on 10.1.2007, I find that the Deputy Registrar has not applied his mind rather mechanically, treating the order passed by this Court as mandate, referred the dispute to the Prescribed Authority. Therefore, I am of the view that order passed by the Registrar dated 10.1.2007 suffers from error and is unsustainable and I, hereby, quash it. I am further of the view that ones the basic order passed in the matter goes all the consequential order passed by the authorities merged in the same. Accordingly, the order dated 10.3.2008 passed by the Prescribed Authority also goes and the same is also hereby quashed. The Writ Petition No. -2009 (MB) of 2008 is hereby allowed.
Mr. Tiwari, Senior Advocate submitted that after expiry of the tenure of Committee of Management elected in 2005 once the other duly elected Committee of Management came into existence, the dispute relating to erstwhile Committee of Management automatically has lost its significance and it would be mere abuse of process of the Court to invoke the jurisdiction of this Court under Article 226 of the Constitution of India to decide such dispute.
In support of his submission he cited the following decisions; Committee of Management, Shiksha Pracharini Sangh and Another Vs. Prescribed Authority/Sub Divisional Magistrate and Others, . Relevant paragraph 7 is reproduce herein below;
In the opinion of the Court the order of the Assistant Registrar so far as it relates to decide the dispute pertaining to the elections of the year 1990 and 1991 on the ground that reference has become infructuous calls for no interference under Article 226 of the Constitution of India inasmuch as the Prescribed Authority has rightly held that no purpose would be served for deciding the legality or otherwise of the elections pleaded by the parties, specifically, in view of the fact that the term of the elected office bearers has expired long back. It is to be remembered that power exercised by the Prescribed Authority u/s 25(1) of the Act are summary in nature and are subject to the orders passed by the civil court in regular suit proceedings. Reference in that regard may be made upon the law laid down by the Hon''ble Supreme Court in Qamar Rashid Khan Vs. Committee of Management, Azamgarh Muslim Education Society and Others 1999 40 AWC 3279 : JT 2001 (10) SC, wherein it has been held as follows;
In these appeals, we are not concerned with the legality of the fresh elections, if any that has been held and if there has been an election, the legality of the same had to be assailed in appropriate forum by the party concerned. Since the period of tenure is already over, it is not necessary for us to examine the correctness of the conclusion arrive, at by the Division Bench of Allahabad High Court. In our view, the appeals have become infructuous.
Whereas claiming relevancy of dispute even at this stage Mr. Prashant Chandra, learned Senior Advocate supported his arguments with the following judgment of this Court;
Committee of Management, Gangadin Ram Kumar Inter College Ramgarh, Barwan, District Jaunpur Versus Deputy Director of Education, Vth Region, Varanasi and others 2006 (24) LCD 1328. Relevant paragraph 14 is reproduce herein below;
The submission made is that since the election was held on 04.6.1996 the writ petition had become infructuous and the learned Single Judge committed error in allowing the writ petition. The judgment dated 22.10.1997 passed by the learned Single Judge after recording finding that the order of this Court dated 02.02.1993 directing Prabandh Sanchalak to hold election, has not been complied with, the fresh election as required to be held by the Prabandh Sanchalak and the elections conducted by the committee of Management which has been declared void, cannot come in the way of the learned Single Judge in directing fresh election by the Prabandh Sanchalak. The writ petition cannot be said to have become infructuous merely because before delivery of judgment the same office bearers elected on 21.6.1993 had set up election by themselves. The election dated 18.6.1996 has not been held by the Prabandh Sanchalak who alone was competent to conduct the election in view of the judgment of this Court dated 02.02.1993. The submission of the counsel for the appellants that the writ petition has become infructuous thus cannot be accepted. There is one more reason for not accepting the submission of the learned Counsel for the appellants. The committee of management which came into existence on 21.6.1993 has been held to be invalidly constituted and the said election has been quashed by this Court. If the subsequent election held by the Committee of management is allowed to continue that will be perpetuating the illegality and this Court while exercising jurisdiction under Article 226 has every jurisdiction to direct for fresh election by the Prabandh Sanchalak who was competent to hold election by earlier order of this Court dated 02.02.2003.
It is pertinent to mention here that by efflux of time even during pendency of this writ petition, tenure of committee of management expired in 2007, 2009 and 2011 either in presence of newly elected Committee of management or in continuation thereof.
Upon perusal of the record, I find that mainly the dispute is based on the validity of membership of some of the members who have been debarred from casting their votes, as they failed to pay the requisite fee till the cut of date fixed therefor. The members are the electors of the Committee of Management of the society for each and every tenure. Therefore, I am of the view that the dispute of membership which is the basis of present dispute is still relevant for decision.
Under the circumstances without entering into question of validity of election as by efflux of time the same has become irrelevant in light of the decision rendered by the Division Bench of this Court in the Case of Ganga Din Ram Kumar Inter College Ramgarh, Barwan, District Jaunpur (Supra), I am of the view that the membership dispute still requires adjudication by the competent authority for which the Registrar/ Deputy Registrar is the Competent Authority. Therefore, without interfering in any of the elections of the Committee of management held earlier, I hereby issue direction to the Registrar/ Deputy Registrar of the Societies to proceed and settle the membership dispute before permitting to hold any further election by inviting the parties concerned to file their objections/ submissions and also after considering the same.
The authority concerned shall complete the exercise as aforesaid within three months after production of certified copy of this order before him and they immediately thereafter shall proceed to hold a fresh election in accordance with law. In the meantime the Registrar / Deputy Registrar of the Societies shall, to look into the affairs of the Society, appoint the interim committee consisting of minimum three members having ample experience in the affairs of the Society. As soon as the election of the regular Committee of Management takes place, the existence of the interim committee shall stand abolished.
The question of maintainability of writ petition has also been raised, whereas keeping in view the several orders passed by the Hon''ble Single Judge as well as the Appellate Court, at this stage I do not feel it appropriate to throw out the writ petitions on the ground of maintainability. Therefore, the objections against the maintainability of writ petition made by the contesting parties are hereby over-ruled.
During pendency of the proceeding before the Prescribed Authority on 27.4.2007, the Prescribed Authority in the interest of justice also passed an interim order, whereby he directed the parties to maintain the status quo and restrain the Committee of Management to take any such decision as it affects the facts which are in dispute. Thereafter, since the term of the Committee of Management was going to expire, the Honorary Secretary of the Club notified to hold a new election though the same was claimed violative of the order passed by the Prescribed Authority. A Contempt petition was filed in which notices were also issued but ultimately election took place. During the course of process of election, some new members were also enrolled and allowed to participate in the election which took place on 27.5.2007. On the very next date i.e. 28 may 2007, the Honorary Secretary of the Club suspended three members. The Prescribed Authority finally decided the dispute by declaring the election held on 05.6.2005 as void. Though the proceeding of the next election were challenged before the Civil Court, in which Civil court also by issuing temporary injunction interfered with but this Court by means of order dated 24.5.2007 passed n writ petition No. 2562 (MS) of 2007 set aside the order passed by the Civil Court. The Election took place, which term has also expired. Therefore, the same does not require any consideration in the present context but the action of the Secretary of the Club is very much considerable in the light of the interim order passed by the Prescribed Authority. Since the basic dispute relates to the validity of the members of the Society, which was raised during the proceeding of election in 2005 and the order passed by the Secretary of the Society debars them from functioning as members. I am of the view that the order passed by the Secretary of the Society definitely affected the facts, which were in dispute before the Prescribed Authority. Therefore, I hereby direct that the same shall not come in the way in the functions of those members as members of the Society and to this extent the action of the Secretary of the Society is declared as non-est. So far as the other challenges as well as disputes involves in other connected writ petitions are concerned, in light of the observations as well as directions made herein above, they lost their significance and need not to go through it. Thus writ petitions No. 3122 (MS) of 2010, 2768 (MS) of 2008, 2817 (MS) of 2008, 2547 (MS) of 2008, 2941 (MS) of 2008 and 2033 (MS) of 2008 are hereby disposed of in terms of observations and orders made as above.