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2017 DIGILAW 1149 (ALL)

PRABHU NARAYAN UNION CLUB v. STATE OF U. P.

2017-05-01

SAUMITRA DAYAL SINGH

body2017
JUDGMENT Hon’ble Saumitra Dayal Singh, J.—These two writ petitions involve disputes pertaining to the election of a society namely, Prabhu Narayan Union Club. Writ Petition No. 17297 of 2017 has been filed to challenge the order dated 8.4.2017 passed by the District Magistrate, Varanasi, by which the polling that was to be held for elections to the Committee of Management of the Society on 9.4.2017, was stayed by the District Magistrate Varanasi. 2. Upon this writ petition being taken up on 25.4.2017, Sri Rajendra Kumar Pandey, learned counsel for the respondent stated that an order under Section 25 (2) of the Societies Registration Act, 1860 (hereinafter referred to as the ‘Act’) has already been passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi and as such the writ petition has become infructuous. 3. Upon such objection, the matter was posted for hearing today. In the meanwhile the petitioner has filed Writ Petition No. 18488 of 2017 to challenge the order dated 20.4.2017 passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi under Section 25 (2) of the Act. 4. Heard Sri Manish Singh, learned counsel for the petitioner, Sri Rajendra Kumar Pandey, learned counsel for the respondent No. 2 and Sri A.K. Upadhyay, learned Standing Counsel for the State and perused the record. 5. With the consent of the parties, both the above writ petitions are being decided finally by this common order today itself, without calling for counter-affidavits. 6. Briefly, it is the case of the petitioner (which is largely admitted to the respondents) that Prabhu Narayan, Union Club is a registered society of which last elections were held on 10.4.2016. The term of the elected committee of management being one year, next election became due on or before 9.4.2017. Further, on 30.3.2017, the election programme for the fresh election, was announced by the outgoing committee of management providing for different dates for completion of different steps of the election process including filing of nomination; their examination; withdrawal of nomination and finalisation of list of candidates for that election. 7. According to that schedule/election programme, polling was scheduled to be held on 9.4.2017, when suddenly without any prior notice, the District Magistrate passed an order on 8.4.2017 and granted stay of polling schedule to be held on 9.4.2017. 8. 7. According to that schedule/election programme, polling was scheduled to be held on 9.4.2017, when suddenly without any prior notice, the District Magistrate passed an order on 8.4.2017 and granted stay of polling schedule to be held on 9.4.2017. 8. It is thereafter, again without any other notice or proceedings being conducted, the Assistant Registrar passed the order dated 20.4.2017, which is the subject-matter of challenge in Writ Petition No. 18488 of 2017. By that order the Assistant Registrar has proceeded to conduct the elections after doing away with the election process that had already been undertaken by the outgoing of Committee of Management. 9. Learned counsel for the petitioner has laid serious challenge to the reasoning and order of the Assistant Commissioner. He submits that the election process once started could not be disturbed midway. For this proposition, he relied upon two judgments of this Court; first being in the case of Hazari Lal Sonkar, 1985 UPLBEC 234 (paragraphs 4 and 5) wherein a Division Bench of this Court held - election schedule once started should not be disrupted and the election should take place according to the schedule. Applying the said principles in the facts of that case, the Division Bench found that the election process that had been validly initiated and had been interrupted. Thereupon, the Division Bench directed to complete the process of election from the stage where it was disrupted. Thus, the Division Bench not only laid down the proposition that if the election process once initiated cannot be disrupted, it also allowed the said process to be completed after doing away with the act of disruption. The judgment of the Division Bench has been approved by the Full Bench of this Court in the case of Ramesh Kumar Singh v. State of U.P., (1992) 1 UPLBEC 292. 10. It is in the above background, learned counsel for the petitioner further submitted that the District Magistrate had no jurisdiction, authority or occasion to pass the order dated 8.4.2017 to challenge the polling scheduled to be held on the next day i.e. 9.4.2017. Perusal of the order passed by the District Magistrate dated 8.4.2017 indicates that the District Magistrate, Varanasi passed the order occasioned by some vague concern in respect of peaceful poling on 9.4.2017. Perusal of the order passed by the District Magistrate dated 8.4.2017 indicates that the District Magistrate, Varanasi passed the order occasioned by some vague concern in respect of peaceful poling on 9.4.2017. Other than that, the District Magistrate, Varanasi has noted existence of certain disputes between the members of the society and has thereafter passed the stay order ostensibly in the interest of public safety. 11. Shri. Rajendra Kumar Pandey, learned counsel for the respondent does not dispute the legal position so laid down by this Court, but he would submit that the term of the outgoing committee having lapsed, no benefit can be had by that committee. 12. While I will examine the effect of the order dated 8.4.2017, a little later, the Societies Registration Act, 1860 is a complete code in itself which provides for all the eventualities for conducting elections of the management of the society and the scope of jurisdiction of authorities. The District Magistrate does not figure as an authority competent to pass the order by him on 8.4.2017. Thus he could not have passed that order. Second, the election process having been validly initiated there was no room to stall it by any party on any pretext. In this regard learned counsel for the petitioner has relied on a judgement of this Court in the case of Meerut Collegiate Association v. Arvind Nath Seth, AIR 1982 Alld. 172, wherein it has been held, with reference to Section 25 proceedings, being summary proceedings Assistant Registrar, did not have any authority to grant stay pending those proceedings. 13. Thus the order dated 8.4.2017, having been passed by the District Magistrate is without jurisdiction and even otherwise in the context of the situation - of an ongoing election process, it was an invalid exercise. This order, cannot therefore be sustained and is hereby quashed. 14. The District Magistrate acted in a hurry and interfered with the ongoing election process of the petitioner society when all that authority was obliged to do was to provide adequate administrative support for conduct of a free and fair polling as had also been requested for by the outgoing committee of management of the petitioner society. 15. 14. The District Magistrate acted in a hurry and interfered with the ongoing election process of the petitioner society when all that authority was obliged to do was to provide adequate administrative support for conduct of a free and fair polling as had also been requested for by the outgoing committee of management of the petitioner society. 15. However, in view of the discussion to be made below, the status of the order dated 8.4.2017 is not of material consequence inasmuch as the said order could only result in operating as a temporary hold of the election and it could not result in annulling the election process or rendering the process redundant. At most such an order could result in delaying the polling date and not override the entire election process. It is so as has been held by this Court in the case of Hazari Lal Sonkar, 1985 UPLBEC 234. 16. In respect of the order dated 20.4.2017, it is to be noted by the said order, the Assistant Registrar assumed jurisdiction to conduct the election under Section 25(2) of the Act on the premise that the term of the outgoing Committee of Management expired on 10.4.2017 and therefore, that date having passed, the outgoing committee of management cannot, now, conduct the election any further. 17. In the facts of the case, the election process had not only been initiated within the time by the outgoing committee of management but also the same had reached conclusion, when the proceedings were stalled by the order dated 8.4.2017 passed by the District Magistrate, Varanasi. If the election process had been allowed to be completed, i.e. if the order dated 8.4.2017 had not been passed, the election process would have been completed within time, wholly in accordance with law. 18. Thus, learned counsel for the petitioner further submitted that postponement of the election in view of the order dated 8.4.2017 did not breach the continuance of the election process inasmuch as major portion of the election programme had already been completed and the election was otherwise scheduled to be completed within time prescribed by law. 18. Thus, learned counsel for the petitioner further submitted that postponement of the election in view of the order dated 8.4.2017 did not breach the continuance of the election process inasmuch as major portion of the election programme had already been completed and the election was otherwise scheduled to be completed within time prescribed by law. In this regard reliance on the another Division Bench judgment of this Court dated 25.9.2014 passed in Special Appeal No. 246 of 2013 (Dharm Raj Singh v. State of U.P. and others), wherein the Division Bench held as below : “The postponement of the election polling schedule does not breach continuation of the election of the election process and that too when major portion of the election programme had already been completed. From the aforesaid facts, it can easily be inferred that when the election process has started within time and even if it could not be completed, it cannot be said that the Committee had become time barred and the existing Committee of Management is debar from holding elections. Therefore, invoking of the provisions of Section 25 (2) of the Act is wholly unjustified and nonest.” 19. Then, learned counsel for the petitioner further submits that Section 25(2)(3) of the Act is enacted to prevent misuse by the outgoing office bearers of Committee of Management of the Society. However, he would submit that election process had been initiated within time which was as per scheduled to be completed within time i.e. before expiry of the term. Then there was no room to intervene under Section 25 (2) (3) of the Act. In respect of his submission, learned counsel for the petitioner relied upon the judgment of the Single Judge of this Court dated 30.8.2007 passed in Civil Misc. Writ Petition No. 40535 of 2007 (Prabandh Karini Samitee and another v. State of U.P., 2007(8) ADJ 147). 20. In respect of his submission, learned counsel for the petitioner relied upon the judgment of the Single Judge of this Court dated 30.8.2007 passed in Civil Misc. Writ Petition No. 40535 of 2007 (Prabandh Karini Samitee and another v. State of U.P., 2007(8) ADJ 147). 20. Thus, in view of the facts that the election process had been validly initiated well within time by the outgoing committee of management; most part of that process had also been completed as per approved schedule; the election was stalled at the last moment by an invalid exercise of power by the District Magistrate, Varanasi (as discussed above) and; the order dated 8.4.2017 has now been set aside in these proceedings, the outgoing committee of management retains it right to complete and conclude the election process now, in accordance with directions issued below. 21. Though, initially, Shri. Rajendra Kumar Pandey, learned counsel for the respondent sought to dispute the submissions made by learned counsel for the petitioner, however, he agrees that if free and fair election is allowed to be completed (in pursuance of the election programme already under implementation by the outgoing Committee of Management) subject to the polling being allowed under a neutral observer, he would have no objection to such election programme being completed. 22. Accordingly, the instant writ petitions are allowed with the following directions: 1. The order dated 8.4.2017 passed by the District Magistrate, Varanasi (impugned in the Writ Petition No. 17297 of 2017) is hereby quashed as it was not for the District Magistrate to obstruct the completion of a validly initiated election process. 2. The order dated 20.4.2017 passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi (impugned in the Writ Petition No. 18488 of 2017) is also quashed as merely because the term of the outgoing committee of management expired during currency of stay granted by the District Magistrate, Varanasi, the said committee would not loose its right to complete the election process upon the stay order being quashed today. 3. The polling for the election as announced by the outgoing committee of management of the Society, originally schedule to be held on 9.4.2017, shall now to be held on 21.5.2017. 4. The petitioner shall communicate a certified copy of this order to the Assistant Registrar, Firms, Societies and Chits, Varanasi as also the District Magistrate, Varanasi within a week from today. 5. 4. The petitioner shall communicate a certified copy of this order to the Assistant Registrar, Firms, Societies and Chits, Varanasi as also the District Magistrate, Varanasi within a week from today. 5. A publication be made regarding the polling scheduled to be held on 21.5.2017 in two daily newspapers (one in English another one Hindi) published from Varanasi, having wide circulation in District Varanasi within ten days from today. 6. The District Magistrate, Varanasi shall provide adequate measures to ensure free, fair and peaceful poling schedule to be held on 21.5.2017 at 11 a.m. 7. The District Magistrate shall send a neutral observer, who shall only oversee the poling process and submit his report to the District Magistrate, Varanasi on the aspect of free, fair and peaceful polling. 8. The result of the election shall thereafter be announced on 21.5.2017 at 5 p.m. 23. Accordingly, the writ petition is allowed. No order as to costs.