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Himachal Pradesh High Court · body

2014 DIGILAW 797 (HP)

JITENDER KUMAR v. STATE OF H. P.

2014-06-25

SURESHWAR THAKUR

body2014
JUDGMENT : SURESHWAR THAKUR, J. 1. The petitioner in the writ petition prays for according in his favour the relief of cancellation of the registration of the society, nomenclatured as Shanti Niketan Education Society, Office at Malther, P.O. Ratti, Tehsil Sadar, District Mandi, Himachal Pradesh (hereinafter referred to as 'the society'). The society has been registered under the Societies Registration Act, before the competent officer and its registration certificate is comprised in Annexure P-1. The respondent No. 3 has accorded approval to the aforesaid society to house, a, Pharmacy College in the premises of the society, aforesaid. The learned counsel for the petitioner, while addressing arguments before this Court, qua his adverting to the fact of Annexure P-1, the, certificate of registration accorded in favour of the society, aforesaid, by the competent authority being fictitious and forged, has also alluded, to, the factum of a recital in running Page-147 of the writ petition, Paragraph-9, a perusal whereof divulges the fact of the Sub Divisional Magistrate, Sadar, Sub Division, Mandi having, in it, portrayed the fact of the society nomenclatured, as Shanti Niketan Education Society, Office at Malther, P.O. Ratti, Tehsil Sadar, District Mandi, Himachal Pradesh, having obtained registration from the competent authority by misrepresentation of the facts and by producing forged documents. Therefore, hence, the officer, swearing the affidavit, had, prima-facie, recorded a conclusion of the registration of the society being illegal. The pivotal and potent fulcrum, on which the case is anchored upon, is the inquiry report existing at page 468 of the paper book, conducted by the Registrar of Cooperative Societies Registration Act, in compliance to the directions issued by the High Court on 16.8.2012/12.11.2012. 2. The respondents, in their respective replies, had vindicated the stand that the educational institutions run by the society, aforesaid, which had obtained registration under the Societies Registration Act from the competent authority, had, a solemn and pious obligation of providing education to students, its registration was tenable and that the relief, as prayed for by the petitioner, in the writ petition, was wholly unjustified and necessitated its being refused by this Court. 3. 3. The essence and substratum of the entire controversy hinges on the factum, whether the registration of the society, nomenclatured as Shanti Niketan Education Society, Office at Malther, P.O. Ratti, Tehsil Sadar, District Mandi, Himachal Pradesh, is, in accordance with law or not, in, as much, as, it has come to be registered with, its bearing the christened name, approved by the competent registering authority without, its, resorting to suggestio falsi or suppressio veri. The inquiry report, placed on record, as submitted by the Inquiry Officer, being the Registrar, Cooperative Societies, has in extenso dealt with the entire gamut of the working of the society, financial as well as administrative, besides, its constitution. There is nothing on record, at this stage, to convey that the society, through, its counsel, had concerted to elicit any opportunity from this Court to assail the findings recorded by the Inquiry Officer, on the score that the said findings are perverse, absurd, in, as much, as are not built upon any material on record, hence, based on surmises or that the findings itself are nugatory, as well, as inconsequential, theirs having been rendered behind the back of the society. For want of any effort on the part of the society to launch a frontal attack on the inquiry report furnished by the Inquiry Officer, especially on the core controversy qua the management of the society, its functioning both financial as well as administrative and its constitution, obviously enables this Court to conclude that, hence, the society has waived, as well, as abandoned an opportunity to assail the findings recorded by it, hence, is estopped to impeach them. Consequently, the findings, recorded in the inquiry report, are to be concluded to be not ridden with any infirmity, rather, they are conclusive. They, obviously, as a concomitant display the sordid and dismal state of affairs seeping as well as besetting the society, in all quarters. 4. Consequently, the findings, recorded in the inquiry report, are to be concluded to be not ridden with any infirmity, rather, they are conclusive. They, obviously, as a concomitant display the sordid and dismal state of affairs seeping as well as besetting the society, in all quarters. 4. Without adverting to, in extenso, to, the entire findings, recorded in the report, it is worthwhile to refer to the conclusions given by the Inquiry Officer, contained in Page-470 of the paper book, which portion is extracted herein-after:- On the scrutiny of the records of the office of the Sub-Divisional Magistrate, Mandi, as made available by the representative of the office of SDM, Mandi, it was found that the copy of resolution presented in the office of Sub Divisional Magistrate, Sadar, Distt. Mandi on 17.04.2003 for the purpose of registration of Society is different from the resolution originally entered in the proceeding book. A list of 52 promoter members was supplied alongwith the memorandum of association to the office of the Sub Divisional Magistrate, Sadar, District Mandi, at the time of registration of the Society and the same list is still available in the record of the SDM, Mandi, alongwith original registration papers. As also the findings comprised in Page 473, which are also extracted herein-after:- After examining the entire record pertaining to membership statement of parties and position of Act/rules and byelaws, it is established that Society has failed to maintain a true, proper and genuine record of membership as per provisions of the Act and rules made thereunder. The list of promoter members supplied to the registering authority is different from that of the list entered in the proceeding book of the society. Even the proceeding book does not contain the signatures of the promoter members. There was a procedural lapse at the time of registration of the society as the promoters did not maintain a true and accurate account of membership and supplied fictitious lists for registration. However, unlike the proceedings book, the list supplied to the registering authority contained signatures of 52 promoter members and that list was also taken on record by the registering authority. However, unlike the proceedings book, the list supplied to the registering authority contained signatures of 52 promoter members and that list was also taken on record by the registering authority. Thus, in absence of any authentic and true membership record, there is no option than to rely upon the list of 52 original promoter members existing in the record of Registrar-cum-Sub Divisional Magistrate, Mandi and which was submitted/filed by the office bearers of the Society at the time of registration to the registering authority. These original members are to be relied upon as genuine members of the Society to conduct election of Governing Body of the Society to resolve the issue of election as per law. The Administrator of the Society is required to further scrutinize the list of original 52 promoter members and finalize it after deleting the names of dead/resigned members, if any, in accordance with law and the byelaws of the Society. There seems to be no necessity to take account of new members, who have been enrolled after the registration of the society or of expelled members of the society as due procedure before enrollment or expulsion was never followed. After finalizing the list in the aforesaid manner, the Administrator is required to conduct election of the Governing Body of the Society u/s 41(6) of the Act. The Administrator may be afforded reasonable time to complete the entire election process to resolve the issue for good. 5. Lastly, the conclusion, as formed by the Inquiry Officer, detailed at page 485 of the writ book, is required to be extracted herein-after:- From the above facts, it is established that the Society has failed to maintain true, proper and genuine record of membership, as per provision of the Act and the rules made there-under. The observations made hereinabove clearly points that till the year, 2008, the Society was running smoothly, thereafter a scuffle between family members started to take control of property, funds, fee and management of the Society. Sh. Jitender Kumar and Sh. Suresh Kumar are the sons of Sh. Shakti Chand and Mrs. Bimla Devi is the wife of Sh. Shakti Chand. Due to this vicious family feud, the management of the society has been in doldrums since 2008. I have found three main discrepancies in the working of the society, viz. membership, elections and financial irregularities. Sh. Jitender Kumar and Sh. Suresh Kumar are the sons of Sh. Shakti Chand and Mrs. Bimla Devi is the wife of Sh. Shakti Chand. Due to this vicious family feud, the management of the society has been in doldrums since 2008. I have found three main discrepancies in the working of the society, viz. membership, elections and financial irregularities. My inference on each of the issues/points discussed herein-above is as under:- 1. Membership of the society and election of the Governing Body: After examining the entire record pertaining to membership, statements of parties and position of Act/rules and byelaws, it is established that Society has failed to maintain true, proper and genuine record of membership as per provisions of Act and rules made thereunder. Thus, in the absence of any authentic and true membership record, there is no option but to rely upon the list of 52 original promoter members, who have subscribed their signatures, as submitted/filed by the office bearer of the Society at the time of registration and which is available in the record of Registrar-cum-Sub Divisional Magistrate, Mandi. These original members are to be reckoned as genuine members of the Society for the conduct of election of the Governing Body of the Society to resolve the issue of election as per law. At the same time, the members who have been enrolled or expelled after the registration of the society have to be ignored for want of procedure followed by the Governing Body before such enrolment or expulsion. The Administrator of the Society is required to further scrutinize the list of original 52 promoter members and finalize it after deleting the names of dead/resigned members, if any, in accordance with law and the byelaws of the Society. After finalizing the list in aforesaid manner, the Administrator is required to conduct election of the Governing Body of the Society u/s 41(6) of the Act by getting the election programme approved from the SDM, Mandi. The Administrator may be afforded reasonable time to complete the entire election process to resolve the issue for good. 2. Financial irregularities: The entire working of the society has cast aspersions on financial mismanagement and embezzlement of funds. It is, however, difficult to quantify the exact amount of embezzlement, if any, committed by the members. The Administrator may be afforded reasonable time to complete the entire election process to resolve the issue for good. 2. Financial irregularities: The entire working of the society has cast aspersions on financial mismanagement and embezzlement of funds. It is, however, difficult to quantify the exact amount of embezzlement, if any, committed by the members. I, therefore, recommend the Sub-Divisional Magistrate, Mandi who is exercising the powers of the Registrar in respect of this Society to immediately order a special audit of the Society since its registration u/s 35(3) of the Act. If any discrepancy or embezzlement/misappropriation of funds is detected by the Auditors in the funds of the society, surcharge proceedings u/s 40 of the Act may be resorted to against the delinquents to restore the property and funds of the Society. The account books of the society have not been written property which may be updated/completed at the expense of the society." 6. A conjoint reading of the aforesaid conclusions reveal that the documentary evidence on record does unfailingly establish the fact of the society having obtained registration by resorting to suggestio falsi or suppressio veri. Its indulgence in such unwanted and illegal acts, prompts this Court to conclude that its very birth as well as christening, as, well as, obviously, its, registration, is, seeped in falsity and prevarication. Moreover, its functioning has not been smooth, it, has been ridden with mal-administration and mis-governance arising from non holding of elections, which had constrained the appointment of a Sub Divisional Magistrate, as, an administrator, as revealed by Annexures R-1 and R-2. The tales and woes of mal-administration and mis-governance of the society, as also, the fact, as conveyed by the existence of audit report, comprised in Page-563 of the writ book, are tales, which interdict and forbid this Court to hand over the career of students, aspiring to join the courses, organized by it, it being ridden with mal-practices or mired in the quagmire of financial as well as administrative doldrums. Even otherwise, bearing in mind the documentary evidence, taken into consideration by the Inquiry Officer, which has not been concerted to be countervailed by seeking of an opportunity by those society during the course of hearing of the petition, hence, while conveying its acquiescence, does for reiteration communicate that the material relied by the Inquiry Officer, is, authentic. Even otherwise, bearing in mind the documentary evidence, taken into consideration by the Inquiry Officer, which has not been concerted to be countervailed by seeking of an opportunity by those society during the course of hearing of the petition, hence, while conveying its acquiescence, does for reiteration communicate that the material relied by the Inquiry Officer, is, authentic. Consequently, the conclusions and findings, recorded by it, necessitate, theirs, not been disturbed. 7. In upshot while affirming the conclusions of the Inquiry Officer, as well, as by the audit report, herein-above, this Court is constrained to order that the registration, as accorded by the competent officer, to the society being, for reasons adverted to herein-above, anvilled upon suggestio falsi or suppressio veri necessitates its being withdrawn, besides, action in accordance with law be taken against the persons, divulged in the audit report to be involved in the act of mis-appropriation of money of the society. 8. A last, but, feeble attempt, was made by the learned counsel for the society to prevail upon this Court to apply to the society, the provisions of Section 41 of the Himachal Pradesh Societies Registration Act, 2006, in, as much, as, a direction being rendered to the Registrar, Cooperative Societies, to appoint one of the Administrators to manage the affairs of the society so as to enable it to achieve its laudable object. However, the said argument acquires no force and vigour in face of the fact that the Annexures R-1 and R-2, while revealing the fact of administrator having previously been appointed to manage the affairs of the society and even, if, such exercise is re-resorted to it would not either succumb or wane the effect of the acts of the suggestio falsi or suppressio veri indulged into by the society while obtaining registration from the competent authority. Consequently, when its very inception of christening is ridden with falsity, obviously when Section 41 of the Act, applies with force or is ipso facto applicable to a duly christened society under the Societies Registration Act, which the instant society, is not, therefore, there is no option left with this Court, this than to usurp the contention of the learned counsel for the petitioner. Hence Court is compelled to order for taking of action against the defaulters, as detailed in the audit report as also for directing the respondents concerned to initiate action in law for withdrawal of the registration of the society. 9. In view of the above discussion, the writ petition stands disposed of, along with all pending application(s), if any.