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2016 DIGILAW 954 (ALL)

MUSLIM ASSOCIATION v. STATE OF U. P.

2016-03-16

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

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JUDGMENT By the Court.—Muslim Association Kanpur Nagar through its Secretary Abdul Haseeb is before this Court assailing the validity of the order dated 18th February, 2016 passed by learned Single Judge in Civil Misc. Writ Petition No. 7380 of 2016 (Muslim Association, Kanpur Nagar and another v. State of U.P. and others), wherein learned Single Judge has proceeded to allow the writ petition in question and quashed the order dated 28th August, 2015 passed by Deputy Registrar Firms Societies and Chits, Kanpur-opposite party No. 2, wherein directives have been issued to consider the objections preferred by petitioner afresh after giving an opportunity of hearing to the opposite party No. 3 namely Muslim Association, Kanpur Nagar through its Secretary Abdul Haseeb. 2. Muslim Association, Kanpur Nagar is a registered society under the provisions of the Societies Registration Act, 1860 (hereinafter referred to as ‘the Act’). Earlier in reference of elections of Managing Committee of Society, three sets of elections came forward and the Deputy Registrar Firms Societies and Chits, Kanpur referred the matter to the Prescribed Authority vide order dated 29.5.2013. Said order has been subjected to challenge in Civil Misc. Writ Petition No. 47416 of 2013, by Shafeeq Ahmad claiming himself to be Secretary. Said writ petition was dismissed on 5.9.2013, but with direction to the Prescribed Authority to decide the dispute. Special Appeal preferred against the same has also been dismissed on 10.9.2013 wherein this fact has also been noted that earlier elections were held in the year 2012 and list of office bearers was also registered and subsequently 12 members resigned and 12 members were replaced, in this background dispute raised was genuine/bona fide dispute in between three set of claimants. Prescribed Authority in his wisdom on 9.2.2015 has decided the dispute. Against the said order passed by Prescribed Authority, writ petition has been filed with No. 10347 of 2015 (Muslim Association v. State of U.P. and others). Not only this, Khursheet Alam and others have also been before this Court, assailing the validity of elections dated 11.2.2012 and 12.2.2012 of the Executive Committee of Muslim Association alongwith various other prayers and the said writ petition No. 31141 of 2012 has been taken up on 11.8.2015 and on the said date following order has been passed: “In assailing the aforesaid elections the submission of Sri Nayyar is twofold. The first is that the term of the previous elected committee of management of the society had expired on 30.5.2011 and thereafter no elections were held. The committee of management of the society in office became time barred and therefore, it was only upon the Registrar/Dy. Registrar to hold the elections of the society in accordance with the provisions of Section 25(2) of the Societies Registration Act, 1860 (hereinafter referred to as the Act). Secondly, the petitioners have been deprived of their valuable right as members of the society as they have been removed orally from it. The elections which were held on 11.2.2012 and 12.2.2012 are totally fake and were never held. The committee of management of the society which was time barred had no authority in law to conduct any elections. The Registrar also acted without jurisdiction in registering the lists as submitted inasmuch as none of the lists were signed by the previous office bearers as contemplated under the Act. Notwithstanding the respective contentions raised by the parties, the dispute is regarding the validity of the elections of the society held on 11.2.2012 and 12.2.2012. On the basis of the said elections, the list of the members, members of the committee of management and its office bearers were registered on 28.2.2012 by the Registrar/Dy. Registrar. The aforesaid order of the Registrar/Dy. Registrar registering the list pursuant to the elections dated 11.2.2012 and 12.2.2012 has not been assailed by the petitioners in this writ petition or in any other forum.The validity of the registration of the lists is not the subject-matter in dispute. Therefore, if the registration stands there is reason to allow any challenge to the elections which forms the basis of registration of the lists. Secondly, the dispute of aforesaid elections was referred to the prescribed authority under Section 25(1) of the Act. It was adjudicated by the prescribed authority on 9.2.2015 and the elections were held to be valid. The aforesaid order of the prescribed authority has also not been challenged by the petitioners either in this petition or by means of any other petition or before any other forum. Once the said order is final and conclusive there is no occasion to challenge those elections directly though this petition. The aforesaid order of the prescribed authority has also not been challenged by the petitioners either in this petition or by means of any other petition or before any other forum. Once the said order is final and conclusive there is no occasion to challenge those elections directly though this petition. It has also come on record that as the term of committee of management of the society is three years on its expiry fresh elections of the society were held on 26.2.2015 and the names of the members of the committee of management and its office bearers so elected have been registered on 14.7.2015 by the Registrar/Dy. Registrar. This order is also final and conclusive and is not in dispute in any forum. In view of the aforesaid facts and circumstances as the petitioners have failed to challenge the order of the Registrar/Dy. Registrar dated 28.2.2012 registering the list of the members of committee of management and its office bearers elected on 11.2.2012 and 12.2.2012, the order of the prescribed authority dated 9.2.2015 by which the validity of the above elections was upheld and the subsequent elections dated 26.2.2015 and the registration of the list of the members of committee of management in pursuance thereof, the petitioners are not entitle to any effective relief in this petition. This apart the bye-laws of the society provides that a petition or any case on behalf of the society can be instituted and pursued by the General Secretary of the society. The petitioners therefore, cannot espouse the cause of the society. Even if the petition is treated to be one by the petitioners in their individual capacity they cannot possibly challenge the elections of society dated 11.2.2012 and 12.2.2012 as it would amount to dislodging the decision of the majority of members by the members in minority. The grievance of the petitioners about their membership of the society is dependent upon facts for which the proper course available to the petitioners is to take action and get their rights adjudicated by the Civil Court. In view of the aforesaid facts and circumstances, I am of the view that no relief can be granted to the petitioners in exercising of writ jurisdiction in this petition and accordingly, the writ petition is dismissed.” 3. In view of the aforesaid facts and circumstances, I am of the view that no relief can be granted to the petitioners in exercising of writ jurisdiction in this petition and accordingly, the writ petition is dismissed.” 3. The writ petition No. 10347 of 2015 preferred by the opposite party No. 4 was against the order of the Prescribed Authority dated 9.2.2015, whereby the Prescribed Authority had adjudicated upon the validity of the election held in the year 2012. The writ petition was dismissed as withdrawn on 11.8.2015 with the following clarification: “After some arguments, he submits that he may be permitted to withdraw the writ petition provided its dismissal does not come in his way in getting the validity of the elections of the Committee of Management of the Society dated 26.2.2015 challenged before the Civil Court. The adjudication of any dispute about the elections of a Society by the Prescribed Authority under Section 25 of the Act is by way of summary proceedings and is always subject to decision by the competent Court of civil jurisdiction. In view of the above, the writ petition is dismissed with liberty to petitioner to challenge the said elections before the Civil Court where the dispute shall be decided on its merit without being influenced by the decision of Prescribed Authority or this order of the Court”. 4. Prior to it by an order dated 14.7.2015, the Deputy Registrar (second respondent) recognized the elections of the Committee of Management of the Society held on 26 and 27 February, 2015, wherein the respondent-appellant was elected as a general secretary and directed for registration of the list of office bearers under Section 4 of the Act. The petitioner-opposite party No. 4 claiming that he was appointed as General Secretary of the Society on 11.4.2013, preferred an objection dated 28.7.2015 before the opposite party No. 2-Deputy Registrar Firms Societies and Chits and prayed for revocation of the order dated 14.7.2015, whereby the list of office bearers elected on 26 and 27 February 2015 was directed to be registered. In the objection a specific plea was taken that the meeting dated 14.2.2015 in which decision was purportedly taken to hold elections on 26/27 February 2015, was illegal as it was convened by the expelled secretary and that quorum in the said meeting was not complete. In the objection a specific plea was taken that the meeting dated 14.2.2015 in which decision was purportedly taken to hold elections on 26/27 February 2015, was illegal as it was convened by the expelled secretary and that quorum in the said meeting was not complete. Eleven members were also shown to have participated whereas signatures of five members was forged. Several other pleas have also been raised on the basis of which effort was made to demonstrate that the order dated 14.7.2015 was obtained by the appellant respondent by fraud and manipulation. 5. The Deputy Registrar Firms Societies and Chits, opposite party No. 2, taking cognizance of the complaint made by the petitioner-opposite party No. 4 issued a notice on 30.7.2015 to the respondent-appellant fixing 10.8.2015. In response thereto, the respondent-appellant filed detailed objection on 10.8.2015 raising various pleas, one of which was that the petitioner-opposite party No. 4 is not a member of the general body. It was further contended that on 31.3.2015 an order was passed by the opposite party No. 2-Deputy Registrar Firms Societies and Chits repelling all the contentions relating to the validity of the election proceedings and in such view of the matter, it is not open to the opposite party to set up any further claim. On 17.8.2015, the respondent-appellant filed further objections. 6. The opposite party No. 2-Deputy Registrar Firms Societies and Chits by impugned order dated 28.8.2015 rejected the objections filed by the petitioner-opposite party No. 4 on the ground that the opposite party No. 4 had preferred writ petition No. 10347 of 2015 before this Court which was dismissed by order dated 11.8.2015 without granting any relief against the elections set up by the respondent-appellant dated 26 and 27 February 2015. It is further noted in the impugned order that this Court had granted liberty to the petitioner-opposite party No. 4 to approach Civil Court challenging the elections dated 26.2.2015 and in such view of the matter, the remedy available to the petitioner-opposite party No. 4 is to approach the Civil Court. In the impugned order, the opposite party No. 2-Deputy Registrar Firms Societies and Chits has also taken notice of the order passed by this Court on the same day in two other matters relating to the same Society although all these writ petitions were at the instance of other persons. 7. In the impugned order, the opposite party No. 2-Deputy Registrar Firms Societies and Chits has also taken notice of the order passed by this Court on the same day in two other matters relating to the same Society although all these writ petitions were at the instance of other persons. 7. In the order of the Court dated 11.8.2015, reference to the election dated 26.2.2015 was made, then an application seeking correction/modification was moved by the petitioners and same was allowed by order dated 27.1.2016. The Court disposed of the application with the following clarification : “Sri Rohan Gupta, learned counsel for the petitioner has moved an application for correction/clarification of the above order on the ground that the aforesaid order is creating confusion as it refers to elections dated 26.2.2015 the correctness of which was not adjudicated by the prescribed authority.” “In view of the above, the order dated 11.8.2015 is clarified and it is observed that the liberty granted to the petitioner while dismissing the writ petition is to challenge the dispute of membership of the Society by means of the civil suit which was the subject-matter of adjudication by the prescribed authority vide order dated 9.2.2015 and not of the elections of the Society held on 26.2.2015.” 8. Request has been made before learned Single Judge that once clarification application has been allowed by this Court, then it is abundantly clear that this Court had not adjudicated upon the validity of the elections dated 26 February 2015 and consequently the order of the Deputy Registrar becomes vulnerable in so far as it refuses to adjudicate upon the complaint filed by the petitioners (petitioners of Writ Petition No. 10347 of 2015) solely on the ground that this Court had refused to grant any relief to the petitioners in relation to the elections held in February 2015 and they were directed to approach the Civil Court. Thereafter Writ Petition No. 7380 of 2016 (Muslim Association, Kanpur Nagar and another v. State of U.P. and others), has been filed and the writ petition in question has been allowed. 9. Thereafter Writ Petition No. 7380 of 2016 (Muslim Association, Kanpur Nagar and another v. State of U.P. and others), has been filed and the writ petition in question has been allowed. 9. Shri Yogesh Kumar Saxena, Advocate appearing for the respondent-appellant submitted with vehemence that there was no occasion or justification for the learned Single Judge to have issued directives for directing opposite party No. 2 to consider the objections preferred by the petitioner-opposite party No. 4 afresh after giving opportunity of hearing to the respondent-appellant and in case the petitioner-opposite party No. 4 is questioning the validity of election that has been held on 26th and 27th February, 2015, then their remedy was to file reference before the Prescribed Authority by mustering support of 1/4 members or to file suit before the Civil Court as already directed above and creating of such a forum is not at all subscribed under Societies Registration Act, 1860 as such Special Appeal deserves to be allowed. 10. Shri Rohan Gupta, Advocate, on the other hand, contended that the objections raised in the writ petition clearly exposed that large scale manipulations have been made, and same warranted enquiry, in view of this, rightful order has been passed for considering the objections preferred by the petitioner-respondent afresh after giving opportunity of hearing to the respondent-appellant also. 11. After respective arguments have been advanced, the factual situation that is so emerging is that by an order dated 14th July, 2015, the Deputy Registrar recognized the elections of the Society held on 26th and 27th February, 2015, wherein present respondent-appellant has been elected as General Secretary and directives have been issued to file a list of office bearers under Section 4 of the Act and against the same, objections have been preferred by the opposite party No. 4 on 28th July, 2015 before the opposite party No. 2 wherein plea has been taken that in the meeting dated 14.2.2015 in which decision was purportedly taken to hold elections on 26/27 February 2015 was illegal as it was convened by the expelled secretary and that quorum in the said meeting was not complete. Various other issues have also been raised in respect of elections dated 26/27 February, 2015. Various other issues have also been raised in respect of elections dated 26/27 February, 2015. In pith and substance petitioner-opposite party No. 4 has been questioning the validity of continuance of Secretary, who had convened the meeting, as it was being claimed that he had been expelled, and the elections held on 26/27 February, 2015 has been questioned by the fourth respondent. 12. Once the election dated 26/27 February, 2015 has been accorded recognition by the Deputy Registrar by order dated 14th July, 2015, then the Deputy Registrar has no Authority to recall the same as under the provisions of Societies Registration Act, 1860 there is no power of review and only in cases when there is apparent fraud/misrepresentation alleged, after satisfying himself, order can be recalled. Here objection is in reference of continuance of Secretary as it was being claimed by petitioner that earlier Secretary had been expelled and only he had the right to convene meeting, and apart from this elections were being challenged. At the point of time when list has been registered a categorical mention has been made that if anyone is aggrieved then reference can be filed by him under Section 25(1) of Societies Registration Act, 1860 and the said recognition in question could be challenged only by making reference after mustering support of at least one fourth of the members of a society registered in Uttar Pradesh, before the Prescribed Authority or by filing suit before the Civil Court. 13. Once specific forum has been provided for under the Societies Registration Act, 1860 for questioning the validity of elections; as well as the continuance of office bearers and the Deputy Registrar has recognized the elections of the Committee of Management of the Society held on 26 and 27 February, 2015, then in the present case, it is clearly reflected that an indirect attempt is being made by the opposite party No. 4 to question the validity of the same before the Deputy Registrar. The Deputy Registrar has got no authority to decide the said issue of continuance of office bearers and member and the dispute about validity of election and such an authority is conferred only upon the Prescribed Authority or Civil Court. 14. The Deputy Registrar has got no authority to decide the said issue of continuance of office bearers and member and the dispute about validity of election and such an authority is conferred only upon the Prescribed Authority or Civil Court. 14. Once such is the background of the case and in the past the matter has been before the Prescribed Authority wherein the order dated 14th July, 2015 has been passed wherein the prescribed authority has proceeded to accept the list dated 11th February, 2012 and 12 February, 2012 and has proceeded to disapprove the list dated 16th April, 2013 and 1.5.2013 and all the three lists of the year 2013-14 and qua the said order petitioner has withdrawn his writ petition for approaching Civil Court, then it is writ apparent that petitioner is searching for a place in the society concern and with the said design, he has set up theory of his induction as Secretary of Society and ouster of Secretary of Society, alongwith the holding of elections. Once such an order has been passed and the said order has been permitted to attain finality, then collateral challenge qua the membership are issues that can be decided by leading evidence either before the Prescribed Authority or before the Civil Court. 15. Serious issue has been raised that Safeeq Ahmad is not even primary member of the General Body. Merely because clarificatory order has been issued on 27.1.2010, same would not ipso facto confer jurisdiction on the Deputy Registrar Firms Societies and Chits to take up the objections. Moreover there is serious dispute about membership of Safeeq Ahmad and the other order of the same date is staring on the face of it, that election can be challenged either before the Prescribed Authority or before the Civil Court. 16. In view of this, in the present case, learned Single Judge is not right when he has proceeded to create a forum for getting issues decided touching the question of continuance of office bearer, in the present case, the Secretary as well as the validity of the elections. The view taken by learned Single Judge cannot be approved of by us. 17. In view of this, the order dated 18.2.2016 passed by learned Single Judge in Civil Misc. The view taken by learned Single Judge cannot be approved of by us. 17. In view of this, the order dated 18.2.2016 passed by learned Single Judge in Civil Misc. Writ Petition No. 7380 of 2016 (Muslim Association, Kanpur Nagar and another v. State of U.P. and others) is set aside but we make it clear that the order passed by us will not at all come in the way of petitioner-opposite party No. 4 to move reference under Section 25 (1) of the Societies Registration Act, 1860 after mustering support of 1/4th valid members of the General Body of Society or alternatively file suit before the Civil Court. 18. With these observations/liberty, present Special Appeal is allowed. No order as to cost.