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2016 DIGILAW 3915 (ALL)

Stalin v. State of U. P.

2016-12-05

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra,J. This petition is directed against an order dated 28.5.2016/31.5.2016 passed by Assistant Registrar, Firms, Societies and Chits, whereby an election conducted on 17.1.2016, has been discarded, and fresh election is directed to be held under Sub-Section 2 of Section 25 of the Societies Registration Act, 1860. The order further authorizes District Inspector of Schools, Kushinagar, to get the election conducted in his capacity as an Election Officer. An interim order has been passed on 12.9.2016 in the present writ petition, which reads as under : - "List revised. Issue notice to respondent nos. 4 and 5 returnable within six weeks. List thereafter. The petitioners, who are five in number claim to be members of Lal Bahadur Shastri Shiksha Samiti Sapahi Tadawa, District Kushinagar, a society duly registered under the Societies Registration Act 1860. It is contended that the last election of the committee of management was held on 27 January 2013, the committee thereafter enrolled 8 members including the petitioners on 16 May 2013, the subsequent election was held on 17 January 2016. In the meantime, election of 2013 was challenged by third party. The second respondent, Assistant Registrar, Firms, Societies and Chits, Gorakhpur Division, Gorakhpur while rejecting the objection of the third party, however, has recorded a finding that the names of 8 members including the petitioners though finds recorded in the list of 2005-06, however, the list (32 members) forwarded by the Assistant Registrar to the District Inspector of Schools on 31 May 2013 does not include the name of the petitioners, therefore, a presumption has been drawn that the petitioners do not continue as the members of the Society for the reason that the list dated 31 May 2013 forwarded by the erstwhile Assistant Registrar was not challenged before any appropriate forum. Shri Ashok Khare, learned senior advocate assisted by Sri Durga Tiwari, learned counsel appearing for the petitioner would contend that (i) the petitioners were not before the Assistant Registrar; (ii) while considering the dispute pertaining to the elections of 2013, raised by a third party, the issue of membership of the petitioners could not have been decided without notice or hearing; (iii) admittedly the names of the petitioners was included in the list 2005-06; (iv) the ingredients contemplated under Section 25(2) of the Act for passing of the order thereunder is absent. Submission requires consideration. Submission requires consideration. Till the next date of listing, effect and operation of impugned order dated 28 May 2016/31 May 2016, passed by second respondent, shall remain stayed." 2. At the very outset, learned counsel for the respondent no. 4 states that the order passed by Assistant Registrar has already been acted upon, inasmuch as, fresh election of the societies has been held. The alleged proceedings of the election dated 17.6.2016, have been produced before the Court. 3. From the perusal of the proceedings, it is apparent that District Inspector of Schools has not conducted the election, as was directed by the Assistant Registrar. It appears that the election was conducted on 17.7.2016 in the presence of Block Development Officer, who was present as an observer. 4. Learned counsel for the petitioners states that the alleged election was that of the Committee of Management of the institution, and not that of the society. 5. Having examined materials placed, this Court finds that the alleged election of 17.6.2016 is not the election conducted under Section 25 (2) of the Act, inasmuch as, it is either the Assistant Registrar or an Officer authorized by him who can get the election conducted. The alleged election has neither been conducted by Assistant Registrar nor by District Inspector of Schools, who has been authorized for the purpose. The election, therefore relied upon by respondents, cannot be said to be an election under Sub-Section 2 of Section 25 of the Act. The objection of respondent that order of Assistant Registrar stood exhausted is rejected. 6. The order impugned of the Assistant Registrar proceeds to discard the election conducted on 17.1.2016, on the ground that there had been change in the composition of membership, and various new members have been enrolled. List of membership has therefore been doubted to discard the election. Petitioner no. 1 claims to have been elected as Manager in this election. 7. It is contended that no opportunity of hearing has been afforded to the petitioners before passing the order. It is also stated that on the aspect of relating to claim of membership also, no opportunity has been provided to the petitioners to submit details of the proceedings dated 26.6.2014, in which various new members have been enrolled including petitioner no. 1. It is also stated that on the aspect of relating to claim of membership also, no opportunity has been provided to the petitioners to submit details of the proceedings dated 26.6.2014, in which various new members have been enrolled including petitioner no. 1. It is contended that issue of 2013 elections was subject matter of proceedings pending before the Assistant Registrar and without putting the parties to proper notice on the subsequent election of the year 2016 or induction of fresh members, the order impugned is passed, which violates principles of natural justice. 8. From the perusal of the materials brought on record, it is apparent that Manager who was elected, has not been heard in the matter. 9. In the facts and circumstances, it appears that no opportunity was afforded to the petitioner to adduce evidence with regard to claim of alleged induction of members on 26.6.2014, on holding of consequential election dated 17.1.2016 and in such circumstances, the order passed by Assistant Registrar, Firms, Societies and Chits, does not appear to have been passed after affording reasonable opportunity of hearing in the matter, and hence cannot be sustained. 10. Writ petition, consequently, succeeds and is allowed. Order dated 28.5.2016/31.502016 is quashed. The Assistant Registrar is directed to afford an opportunity of hearing to the petitioners, specially with regard to claim of alleged induction of new members and election dated 17.1.2016, and pass a fresh order, within a period of six weeks from the date of presentation of certified copy of this order, after affording an opportunity of hearing to the respondents/parties, in accordance with law.