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2014 DIGILAW 3833 (ALL)

Jabar Singh Yadav v. State of U. P.

2014-12-23

A.P.SAHI, MAHENDRA DAYAL

body2014
JUDGMENT Heard Sri Raghvendra Singh, learned senior counsel assisted by Sri Bagesh Shukla for the appellant, Dr. L.P. Mishra for the respondent no.4 and the learned Standing Counsel for the respondents no.1 and 2. Learned counsel agree that the matter be disposed off finally. 2. The respondent no.4 has filed his counter affidavit to which a rejoinder affidavit has also been filed. They are the main contesting parties. The respondent no.3 has been arrayed as a respondent as he had earlier filed two writ petitions in the capacity of a member of the Society before this court in which directions had been issued, the facts whereof shall be narrated hereinafter. 3. The challenge in this petition is by the appellant who claims himself to be the Secretary of a Society registered under the Societies Registration Act, 1860 namely, Uttar Pradesh Prathamik Shiksha Sangh. It is undisputed that the appellant and the respondent no.4 were elected as office bearers in the elections of the Society dated 29.10.2012. The respondent no.4 was elected as a President. 4. It appears that the appellant and the respondent no.4 fell out for reasons best known to them and then the dispute began with the appellant alleging that the respondent no.4 could not have been continued as either a Member of the Society or Office Bearer in terms of Section 16-A of the 1860 Act, inasmuch as the respondent no.4 had been convicted on 15.2.1984 by the learned Additional Sessions Judge, Raebareli in a criminal case for an offence under Section 302 IPC read with Sections 148,149 and 379 IPC. Accordingly, it is alleged that a resolution was passed on 14.7.2013 by the Executive Committee as the respondent no.4 Lallan Mishra had incurred this statutory disqualification under the 1860 Act being involved in an offence amounting to moral turpitude. 5. It appears that as a counter measure the respondent no.4 alleges that the appellant, who had been elected as a Secretary, had been suspended by the President on 10.6.2013 as per the bye-laws, and the Executive Committee had approved the same on 23.6.2013. A final resolution was passed on 2.7.2013 proposing removal of the appellant from the office of Secretary which was given effect to by the general body on 18.7.2013. 6. A final resolution was passed on 2.7.2013 proposing removal of the appellant from the office of Secretary which was given effect to by the general body on 18.7.2013. 6. The aforesaid facts, therefore, indicate that the appellant alleges that the respondent no.4 stood removed from the office of President by virtue of the disqualification incurred by him on 14.7.2013 whereas the respondent no.4 alleges to have suspended the appellant and ultimately removed him in the circumstances indicated above. 7. This dispute appears to have taken a litigative turn with one Sri Hari Singh claiming himself to be a Member of the General Body to have approached this Court by filing Writ Petition No.8195 of 2013 where a prayer for a writ of quo warranto was made to remove the respondent no.4 Lallan Mishra from the office of the President. The said writ petition was disposed of rejecting the aforesaid prayer of quo warranto as being not maintainable, but at the same time issuing a direction giving liberty to Hari Singh to approach the statutory authority or forum under the 1860 Act to ventilate his grievances. The judgment is extracted hereinunder : - "Heard learned counsel for the parties and perused the record. The instant writ petition under Article 226 of the Constitution of India has been preferred for issuance of a writ in the nature quo-warranto to remove the opposite party no. 5, who is the President of U.P. Prathmik Sikshak Sangh, a society registered under the Societies Registration Act. The controversy in question seems to be between the petitioner and private society and not between the State Government. Hence, the present writ petition under Article 226 of the Constitution of India is not maintainable. A writ in the nature of quo-warranto can also not be issued against the opposite party no. 5 by this court since he is not holding a public office. Since, the opposite party no. 5 is the President of a society registered under the Societies Registration Act, option is open to the petitioner to move appropriate application in accordance to the provisions contained in Societies Registration Act to the statutory authority and in case it is found that due to criminal antecedent, the opposite party no. Since, the opposite party no. 5 is the President of a society registered under the Societies Registration Act, option is open to the petitioner to move appropriate application in accordance to the provisions contained in Societies Registration Act to the statutory authority and in case it is found that due to criminal antecedent, the opposite party no. 5 is not entitled to hold the office in question in view of the provisions contained in Section 16-A of the Societies Registration Act, then it is for the Registrar/Deputy Registrar of the Society concerned to look into the matter and to proceed in accordance with law. It is not for this court to interfere with the matter. Accordingly, we give liberty to the petitioner to approach the statutory authority or forum under the Societies Registration Act to ventilate his grievance. With these observations/directions, the writ petition is finally disposed of. Order Date : - 26.11.2013." 8. This direction was coupled with a complaint on which the Deputy Registrar, Firms, Societies and Chits, Lucknow issued an order on 2.9.2014 directing the Society to take appropriate action and inform the Deputy Registrar accordingly as the opinion had been given by the learned Standing Counsel that an action deserves to be taken in view of the conviction of the respondent no.4. It was also observed therein that the conviction under Section 302 read with Section 149 IPC would amount to an indictment that involved moral turpitude and as such the respondent no.4 deserved to be treated as disqualified. 9. It is to be noted that the respondent no.4 did not challenge the said order before any Court of law and, on the other hand, the appellant moved an application on 4.9.2014 informing the Deputy Registrar that the Executive Committee had already taken a decision on 19.5.2014 to take action against the respondent no.4 under the aforesaid direction and a resolution had been passed removing the respondent no.4 on 14.7.2013. 10. Notices had been sent to the respondent no.4, who according to the appellant did not respond to them and consequently vide order dated 16.9.2014 the Deputy Registrar declared the office of President to have become vacant. 11. 10. Notices had been sent to the respondent no.4, who according to the appellant did not respond to them and consequently vide order dated 16.9.2014 the Deputy Registrar declared the office of President to have become vacant. 11. In between it is appropriate to mention that Hari Singh once again filed Writ Petition No.2400 of 2014 for compliance of the judgment dated 26.11.2013 which was disposed of on 20.8.2014 by the following judgment : - "This writ petition has been filed with the following reliefs: - "1) Issue a writ, order or direction in the nature of Mandamus commanding the opposite party no. 2 to take immediate decision with regard to removal of opposite party no. 3 from the post of President of Pradeshiya Shikshak Sangh within time framed in compliance of the order dated 26.11.2013 passed by this Hon'ble Court, contained as Annexure no. 5 to the writ petition. 2) Issue a writ, order or direction in the nature of mandamus commanding the opposite party no. 2 to seize the power of opposite party no. 3 until matter pending before him is decided. 3) Issue any other writ or direction in the nature of mandamus as this Hon'ble court may deem fit under the facts and circumstances of the case. 4) Allow the writ petition with cost against the opposite parties." 12. After hearing learned counsel for the petitioner and learned Standing Counsel, this writ petition is disposed of with a direction to the Deputy Registrar (Firm and Societies), Lucknow Division, Lucknow to pass appropriate order on the representation of the petitioner within a period of one month from the date of production/receipt of a certified copy of this order along with fresh representation. Order Date : - 20.8.2014" 12. It is thereafter that the opinion of the learned Standing Counsel appears to have been tendered pursuant to the earlier complaint that was pending but after taking notice of the aforesaid order, the Deputy Registrar had passed an order dated 2.9.2014. 13. The order passed on 16.9.2014 is alleged to have been passed ex parte to the respondent no.4 whereby the office occupied by him as President had been declared to be vacant. 13. The order passed on 16.9.2014 is alleged to have been passed ex parte to the respondent no.4 whereby the office occupied by him as President had been declared to be vacant. He, therefore, filed Writ Petition No.5884 of 2014 challenging the order dated 2.9.2014 and without there being any challenge raised to the order dated 16.9.2014 a prayer had also been made by the respondent no.4 to declare Section 16-A of the Societies Registration Act, 1860 as ultra vires. 14. The said writ petition was taken up on 17.9.2014 and the prayer for declaring Section 16-A as ultra vires was given up. The Court further observed that in the order dated 2.9.2014 the Deputy Registrar has only asked the Society to act in accordance with Section 16-A of the 1860 Act and that he has not given any finding with regard to the involvement of the respondent no.4 in an offence of moral turpitude. 15. However, while disposing of the writ petition the Court made an observation that the Society would be independent to take action in accordance with law after hearing the petitioner and other aggrieved persons. The judgment dated 17.9.2014 is extracted hereinunder : - "Heard Dr. L.P.Misra, learned counsel for petitioner and Sri Bagesh Shukla for respondent. Petitioner does not want to press relief clause no.(b) relating to declaration of Section 16-A of the Registration of Societies Act, 1860 as ultra vires. Dr. L.P.Misra has seriously assailed the order dated 2.9.2014 passed by Deputy Registrar directing the U.P. Primary Teachers Association to take appropriate action in the light of Section 16-A of the Act. It appears that petitioner was convicted under Section 302 IPC. Against the conviction, criminal appeal is pending in this Court. In the meantime, respondent challenged his continuance as President of society. This Court directed Deputy Registrar to pass appropriate order on the representation of petitioner. Deputy Registrar obtained some legal opinion from Standing Counsel of this Court who opined that moral turpitude occurring under Section 16-A of the Act covers the cases under Section 302 and 149 IPC. This part of the opinion has been seriously assailed by Dr. L.P.Misra contending that in every case moral turpitude would not be involved. I find from the order that Deputy Registrar has recorded no finding. He merely directed the society to act in accordance with Section 16-A of the Act. This part of the opinion has been seriously assailed by Dr. L.P.Misra contending that in every case moral turpitude would not be involved. I find from the order that Deputy Registrar has recorded no finding. He merely directed the society to act in accordance with Section 16-A of the Act. He has not given any finding with regard to involvement of moral turpitude in the case of petitioner. In view of these circumstances, no cause of action has arisen to approach this Court. Writ petition is premature and is liable to be dismissed. However, it is directed that society would take independent action in accordance with law after hearing petitioner and other aggrieved persons. Writ petition is dismissed. Order Date : - 17.9.2014" 16. On coming to know of the said direction as highlighted which was given in the petition that had been dismissed, the appellant filed a review application being Review Petition No.721 of 2014 praying that the observations made by the learned Single Judge allowing the Society to take further action was unwarranted inasmuch as the Society had already taken action and such action had already been noticed in the order dated 16.9.2014. In such circumstances, the observations made in the judgment dated 17.9.2014 deserved to be reviewed. It was alleged that the facts of action taken were not alleged nor was noticed by the court and therefore the order dated 17.9.2014 deserved correction to that extent. 17. The review application has been rejected vide impugned judgment dated 19.11.2014 which is extracted hereinunder : - "This review petition has been filed for reviewing the order dated 17.09.2014 passed by this Court. It is submitted by Sri Raghvendra Singh, learned Senior counsel that writ petition was filed by concealment of fact that Society had already taken a decision to remove Sri Lallan Mishra from the office of president and had this fact been informed, this Court would not have passed the order sought to be reviewed. Sri Raghvendra Singh has placed before this Court the resolution passed by Committee of Management removing Sri Lallan Mishra on the ground of his conviction in a murder case. He also placed the record showing that above resolution passed by the Committee of Management was sent to Deputy Registrar. Since Deputy Registrar was not acting on these representations, a writ petition [Writ Petition no. He also placed the record showing that above resolution passed by the Committee of Management was sent to Deputy Registrar. Since Deputy Registrar was not acting on these representations, a writ petition [Writ Petition no. 2400 of of 2014 (MS)] was filed in which this Court directed Deputy Registrar to pass appropriate order within a month. This order was passed on 20.08.2014. In pursuance of order passed by this Court, Deputy Registrar passed an order dated 02.09.2014 which was impugned in the writ petition. A perusal of order shows that Deputy Registrar proceeded in pursuance of order passed by this Court on 17thSeptember, 2014, obtained the legal advice of Standing Counsel and then directed the Society to proceed under Section 16-A of the Societies Registration Act. This Court had dismissed the writ petition on the ground that it was premature and observed that Society should act independently in accordance with law after giving opportunity of hearing to both the parties. Submission of Sri Raghvendra Singh is that order passed by this Court directing the Society to act independently after giving opportunity of hearing to parties has led to difficulty inasmuch as on 16.09.2011 order of removal was passed but same was recalled on 19.09.2014. His contention is that Deputy Registrar has passed the order dated 19.09.2014 in pursuance of order passed by this Court on 17.09.2014 dismissing the writ petition, leaving liberty to Society to decide. This Court has no concern with the developments that took place in the office of Deputy Registrar. Resolution of 2013 was already available before Dy. Registrar, yet he passed the order on 02.09.2014 directing Society to take action. Ignoring this order he passed order on 16.09.2014. This Court has affirmed his order dated 02.09.2014. Deputy Registrar had directed that Society to take action independently in accordance with law under Section 16(A) of the Act which obviously meant that a fresh order was expected from the Society by Deputy Registrar. If petitioner had any grievance or in case Society had already passed the resolution, then, it could have challenged the order dated 2nd September, 2014 passed by Deputy Registrar. In pursuance of order passed by Deputy Registrar, Society was bound to take action. This Court has merely observed that Society would pass order taking independent view and after hearing both the parties. In pursuance of order passed by Deputy Registrar, Society was bound to take action. This Court has merely observed that Society would pass order taking independent view and after hearing both the parties. Question of concealment has no relevance as this Court had dismissed the writ petition. This has been done to free the Society from working under any external influence. Moreover, earlier order was passed after hearing review petitioner. This Court does not find any error in the earlier order, as such review petition is dismissed. Order Date : - 19.11.2014" 18. Sri Raghvendra Singh, learned senior counsel, contends that the direction of the learned Single Judge giving permission to the Society to take action was unjust and the review application had been rejected on erroneous considerations. Hence, the judgment dated 17.9.2014 to that extent and the rejection of the review application on 19.11.2014, both orders deserve to be set aside. 19. Replying to the said submissions, Dr. L.P. Mishra along with Sri Sharad Pathak have urged that, as a matter of fact, the matter has already reached the Prescribed Authority for a reconsideration of the dispute. They contend that there cannot be an assumption of involvement of the element of moral turpitude and the same has to assessed by the concerned authority. The Deputy Registrar therefore did not commit an error in passing the order dated 19.9.2014. 20. We, therefore, propose to now deal with the legal issues which have been cropped up keeping in view the aforesaid facts which have been brought on record. 21. It is settled law that if there is any dispute or doubt with regard to the elections or continuance of office bearers of a Society then it is the Prescribed Authority under Section 25 of the 1860 Act who is empowered to enter into such a dispute and adjudicate the same. There are a string of decisions to this effect which are as follows and relied upon by the learned counsel : - 1. 2014 (1) UPLBEC Page 233 (The Committee of Management Anjuman Kherul and others Vs. State and others). 2. 2012 (4) UPLBEC Page 3151 (The Committed of Management Church City and others Vs. State and others) 3. 2004 (3) UPLBEC Page 2603 (Karya Samity and others Vs. State and others) 4. 1987 UPLBEC Page 60 (The Society Ganesh Baba and another Vs. Assistant Registrar) 5. State and others). 2. 2012 (4) UPLBEC Page 3151 (The Committed of Management Church City and others Vs. State and others) 3. 2004 (3) UPLBEC Page 2603 (Karya Samity and others Vs. State and others) 4. 1987 UPLBEC Page 60 (The Society Ganesh Baba and another Vs. Assistant Registrar) 5. 1987 UPLBEC Page 333 (Committee of Management and others Vs. Zila Basic Shiksha Adhikari and others) 6. 1990 (1) UPLBEC Page 480 (Abhay Grahsth Ashram Vs. Assistant Registrar & others) 7. 1991 UPLBEC Page 1046 (Muslim Welfare Society & Another Vs. Assistant Registrar & others) 8. 2000 LCD Page 833 (The Committee of Management Raja Tej Singh Vs. DIOS & others) 22. The Deputy Registrar, therefore, in view of the ratio of the aforesaid decisions could not have proceeded to issue any declaration in relation to the office of President. Sri Raghvendra Singh contends that the Deputy Registrar is not a mere Post Office and it is only a bona fide and genuine dispute that can be referred. It is worth noting that both appellant and the respondent no.4 are relying on resolutions of having removed each other from office. Sri Raghvendra Singh contends that once the disqualification is admittedly applicable on conviction, then there cannot be a second opinion and Section 16-A comes into play. He submits that the respondent Lallan Mishra has nowhere disputed the presence of the element of moral turpitude which disqualifies him. 23. This has been disputed by Dr. L.P. Mishra relying on the affidavit filed before this Court to contend that even the learned Single Judge had noted that there was no finding on the issue of moral turpitude either by the Deputy Registrar or by any competent authority and, therefore, the disqualification would not be automatic. 24. This, therefore, would require an adjudication as to whether the respondent no.4 Lallan Mishra stood automatically disqualified on account of the judgment in a criminal case against him. 25. We have examined these contentions and we find that there is no such adjudication after hearing the parties. The Deputy Registrar in the letter dated 2.9.2014 only incorporated the legal opinion said to have been given by the learned Standing Counsel. Unless, in our opinion, the competent authority records an independent finding of moral turpitude there cannot be an assumption about the same and it has to be adjudicated after putting the respondent no.4 to notice. The Deputy Registrar in the letter dated 2.9.2014 only incorporated the legal opinion said to have been given by the learned Standing Counsel. Unless, in our opinion, the competent authority records an independent finding of moral turpitude there cannot be an assumption about the same and it has to be adjudicated after putting the respondent no.4 to notice. On the issue of notice, Sri Raghvendra Singh contends that the respondent no.4 was aware of it and he never contested this position. 26. On record we find that when the order dated 16.9.2014 was passed, the respondent no.4 had not been given any immediate prior notice by the Deputy Registrar before passing such an order. The notices which had been given earlier to the respondent no.4 ended up with the issuance of the order dated 2.9.2014 where the Deputy Registrar instead of passing any order himself had directed the Society to take an appropriate action. In this background if the Deputy Registrar was proceeding to pass any order by himself on 16.9.2014 proposing to treat the office of President to have fallen vacant, he ought to have given a notice to the respondent no.4 which does not appear to have been done after 2.9.2014. 27. It is also to be noted that the order dated 16.9.2014 was passed after the appellant had filed an application on 4.9.2014 which was entertained and in such a situation it was incumbent upon the Deputy Registrar to have given a notice to the respondent no.4 before proceeding to pass the order dated 16.9.2014. It was, therefore, in violation of principles of natural justice, as it amounted to treating the respondent no.4 to have been unseated from the office of President. 28. The contention of Sri Raghvendra Singh that there is an automatic vacancy of office on occurrence of such disqualification is not the case herein inasmuch as the Society, as represented by the appellant contends that adjudication had been taken by passing of a resolution. The validity of such proceedings, therefore, were not within the jurisdiction of the Deputy Registrar and the matter should have been referred to the Prescribed Authority under Section 25 of the Act as per the law indicated hereinabove. Thus, the Deputy Registrar was under a legal obligation to have done so and not taken a decision by himself. 29. The validity of such proceedings, therefore, were not within the jurisdiction of the Deputy Registrar and the matter should have been referred to the Prescribed Authority under Section 25 of the Act as per the law indicated hereinabove. Thus, the Deputy Registrar was under a legal obligation to have done so and not taken a decision by himself. 29. The Deputy Registrar on the other hand again proceeded to pass an order dated 19.9.2014 which is again an order of review and an outcome of this proceedings which is without jurisdiction. Relief had been granted to the respondent no.4 by reviewing the order dated 16.9.2014, but in our opinion, this exercise was also without authority in law as this again was without any notice or opportunity to the appellant in whose favour the order dated 16.9.2014 had been passed. Thus, the Deputy Registrar had been passing orders without authority and in violation of principles of natural justice. 30. The matter worsened with the directions issued on 20.8.2014 by the learned Single Judge in Writ Petition No.2400 of 2014 by issuing a direction to the Deputy Registrar for passing such orders. In our opinion, no jurisdiction can be conferred on an authority which it otherwise does not possess under the Act. As held above, the Deputy Registrar had no jurisdiction in the matter to adjudicate on the issue of either continuance or election of the President or Secretary of the Society. The direction dated 20.8.2014, therefore, could not have conferred any jurisdiction on the Deputy Registrar which he otherwise did not possess as per the ratio of the decision in the case of Udit Narain Kshetriya High School Padrauna Deoria through its Secretary Sri Ram Pratap Narain Singh and others Vs. District Magistrate, Deoria 1993 (2) ACJ 1293. 31. Not only this when Lallan Mishra filed Writ Petition No.5884 of 2014, the learned Single Judge did not take notice of the aforesaid issue relating to jurisdiction of the Deputy Registrar or the Society to proceed in the matter. If there was a claim or counter claim to the effect that the Society has already passed resolutions as urged by the contesting parties, then there was no occasion for this Court to issue any directions to the Society to take an independent decision in the aforesaid background. If there was a claim or counter claim to the effect that the Society has already passed resolutions as urged by the contesting parties, then there was no occasion for this Court to issue any directions to the Society to take an independent decision in the aforesaid background. The direction, therefore, given in the judgment dated 17.9.2014 was also misplaced inspite of the fact that the writ petition had been dismissed. 32. Similarly, when such facts were brought to the notice of the learned Single Judge for reviewing the judgment, the said error was not corrected and the review application has been rejected. 33. In our considered opinion, neither the Deputy Registrar had any authority to proceed in the matter nor could the learned Single Judge have issued directions to the Society to take any action in view of the background of the case where both parties were contending that action had already been taken by the Society which required adjudication. This adjudication, therefore, was to be done by the Prescribed Authority. In these circumstances, the appeal deserves to be allowed and all the orders either impugned or otherwise deserve to be quashed. 34. Sri Raghvendra Singh contended that the order dated 16.9.2014 was never challenged by the respondent no.4. This contention does not appear to be correct as the Deputy Registrar himself reviewed the order on 19.9.2014 and even otherwise if it was not assailed in the writ petition, this Court has ample powers under Article 226 of the Constitution of India to mould the relief in order to do complete and substantial justice between the parties so as not to revive an illegal order. The judgments relied upon by the learned counsel for the respondent Dr. L.P. Mishra come to his aid. 35. Dr. L.P. Mishra contends that the respondent no.4 had no authority to call a meeting once he was disqualified for removing the appellant. We are not entering into the factual position of the case and it is open to the Prescribed Authority to decide as per our directions given hereinbelow. 36. Consequently, the appeal is allowed. The impugned judgment dated 19.11.2004 is set aside. The direction given in the impugned judgment dated 17.9.2014 to the Society to take appropriate action to that extent is set aside. The orders passed by the Deputy Registrar dated 2.9.2014, 16.9.2014 and 19.9.2014 are also quashed. 36. Consequently, the appeal is allowed. The impugned judgment dated 19.11.2004 is set aside. The direction given in the impugned judgment dated 17.9.2014 to the Society to take appropriate action to that extent is set aside. The orders passed by the Deputy Registrar dated 2.9.2014, 16.9.2014 and 19.9.2014 are also quashed. Thus, all the parties shall now stand relegated before the Prescribed Authority who shall take into consideration the resolutions that have been relied upon by the appellant and the respondent no.4 for removing each other. The Prescribed Authority shall decide the issue relating to the disqualification of the respondent no.4 as alleged as per Section 16-A of the 1860 Act and shall also assess and adjudicate the rival resolutions that have been set up by the appellant and the respondent no.4 against each other alleging their removal. This decision shall be taken by the Prescribed Authority preferably within three months from the date of production of certified copy of the order.