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2017 DIGILAW 2223 (ALL)

Shivnath Yadav Shiksha Samiti v. State of U. P.

2017-09-20

SANGEETA CHANDRA

body2017
JUDGMENT : SANGEETA CHANDRA, J. 1. Heard Shri V.K. Singh, counsel for the petitioners assisted by Shri M.A. Ausaf, learned Standing Counsel for the State-respondent Nos. 1 and 2 and Shri Santosh Kumar Chaubey assisting learned Senior Counsel Shri R.K. Ojha appearing for the respondent No. 3. 2. The learned counsel for petitioners has contended before this Court that undisputed election of the Committee of Management of the Society which runs an Institution known as Shivnath Inter College, Kusumhi, District Chandauli was held in 2005 in which the respondent no. 3 - Krishnanand Yadav was elected as Manager and the petitioner no. 3 Munib Singh Yadav was elected as its President. The term of aforesaid Committee of Management elected in the year 2005 was up to 2010 but after 2010 no election of the Committee of Management of the Society was ever held. 3. Since no elections were being held for a long period, the petitioner no. 3 namely Munib Singh Yadav who was also President of the erstwhile Committee of Management called a meeting of the General Body on 16.01.2015 and held an election thereafter. In the newly elected Committee of Management the petitioner no. 3, - Munib Singh Yadav, was elected as President and the petitioner no. 3, Subhash Singh Yadav, was elected as Manager. The entire papers along with his list of office-bearers was sent to the Assistant Registrar for approval and recognition. 4. After receiving all the aforesaid papers, the Assistant Registrar found that the name of Manager was changed and therefore, issued notice on 19.07.2016 to Krishna Nand Yadav, the erstwhile Manager apprising him of the situation and asking him to appear before the Assistant Registrar along with objections, if any, on 20.07.2016. When the respondent no. 3 did not appear before the Assistant Registrar, again a notice was sent on 11.08.2016 to the outgoing Manager i.e. the respondent no. 3. When no response was received the Assistant Registrar issued an order on 20.08.2016 recognising the newly elected Committee of Management w.e.f. 19.01.2015. 5. After such recognition was granted on 20.08.2016 the respondent no. 3 filed papers for the first time on 14.12.2016, presenting papers for recognition of the Committee of Management along with papers for renewal w.e.f. 2005 onward till 2016-2017. 5. After such recognition was granted on 20.08.2016 the respondent no. 3 filed papers for the first time on 14.12.2016, presenting papers for recognition of the Committee of Management along with papers for renewal w.e.f. 2005 onward till 2016-2017. The Assistant Registrar thereafter issued notice to the petitioner No. 2 on 17.02.2017 stating therein that one Rajju Yadav had already died on 08.03.2014 and therefore in the election held on 16.01.2015 the deceased Rajju Yadav could not have been elected as Vice President of the Committee of Management. A copy of the said notice issued to the petitioner no. 2 was also endorsed to the Respondent no. 3 by the Assistant Registrar. 6. In such endorsement it was asked from the respondent no. 3 that if the renewal of the society was due on 19.01.2010, then, whey the respondent no. 3 did not submit papers in time in 2010 itself instead of submitting all papers all at once, on 14.12.2016. 7. The date fixed by the Assistant Registrar was 28.02.2017 and thereafter, 17.03.2017, 28.03.2017, 06.04.2017, 18.04.2017, 25.04.2017, 09.05.2017 and 16.05.2017 were fixed for hearing of the parties and production of papers. 8. Shri Subash Singh Yadav, the petitioner no. 2, as well as Krishnanand Singh Yadav were both claiming to be the Manager of the Committee of the Management and the Assistant Registrar came to the conclusion that Subhash Singh Yadav had resorted to concealment and misrepresentation and therefore, recalled the order of recognition dated 20.08.2016. 9. The counsel for petitioner, Shri V.K. Singh, has submitted that if a finding was returned that the recognition order dated 20.08.2016 has been obtained by fraud and misrepresentation, then, certainly it was open for the Assistant Registrar to recall the order, but beyond that, no further orders could have been passed recognizing the respondent no. 3's Committee of Management because it was admitted before the respondent no. 2 that both the petitioner as well as respondent no. 3 were members of the same society and had set up a rival elections. If such was the finding that had come before the Assistant Registrar, then, the only line of action available to him was to refer the matter to the Prescribed Authority to decide in accordance with Section 25 (1) of the Societies Registration Act. 10. 3 were members of the same society and had set up a rival elections. If such was the finding that had come before the Assistant Registrar, then, the only line of action available to him was to refer the matter to the Prescribed Authority to decide in accordance with Section 25 (1) of the Societies Registration Act. 10. Shri V.K. Singh has relied upon a Division Bench judgment of this Court in Committee of Management, Anjuman Kherul Almin Allahganj and another Vs. State of U.P. and others reported in 2014 (1) ADJ 44 . This Court considered several precedents including two Division Benches of this Court in All India Council and another Vs. Assistant Registrar, Varanasi and others: 1988 AWC 1154 and Gram Shiksha Sudhar Samiti Vs. Registrar, Firms, Societies and Chits reported in 2010 (7) ADJ 643 and another Division Bench judgment in the case of Committee of Management, Adarsh Krishak Junior High School Vs. State of U.P. and others; 2009 (5) ESC 3506 and also the relevant provisions of the Societies Registration Act viz Section 4 and Section 25 and came to the conclusion that if two rival lists had been submitted and the Deputy Registrar had conflicting claims between the appellants on the one hand and the third respondent on the other hand the Deputy Registrar ought to have referred the dispute to the Prescribed Authority under Section 25(1). In entertaining the dispute himself and going into the merits of the rival claims the Deputy Registrar has clearly transgressed his jurisdiction. "...........The jurisdiction to decide any doubt or dispute in respect of an election of the office-bears of Society lies with the Prescribed Authority and the Registrar ought to have made a reference to the Prescribed Authority under Section 25(1)." The appropriate course open to the Deputy Registrar having not followed by him and the Hon'ble Single Judge in the order impugned having affirmed the order of the Deputy Registrar, this Court had modified the order passed by the Hon'ble Single Judge and quashed the order of the Deputy Registrar and directed that the Deputy Registrar shall make a reference under Section 25 (1) of the Societies Registration Act to the Prescribed Authority and the Prescribed Authority shall upon receipt of such reference under Section 25(1) decide the reference within a period of three months. Thereafter the Deputy Registrar was to take necessary steps under Section 4 upon receipt of the order of the Prescribed Authority. 11. Shri Radha Kant Ojha assisted by Shri Santosh Kumar Chaubey, the learned counsel appearing for the respondent no. 3, on the other hand, has pointed out that contrary to what has been held in the said Division Bench judgment reported in 2014 (1) ADJ 44 there is another judgment of a Division bench reported in 2005 which was overlooked by the Division Bench in the case of Committee of Management, Anjuman Kherul Almin Allahganj and another Vs. State of U.P. and others (supra). He has referred to 2005(3) UPLBEC 2817: Committee of Management, Rashtriya Junior High School (Society), Babhaniyaon, District Jaunpur Vs. Assistant Registrar, Varanasi wherein the appeal filed by appellant therein was dismissed on a finding of fact being recorded that no original documents could be produced substantiating the election which gave managerial post to the appellant and therefore, the Assistant Registrar was found right in withdrawing of his order of granting renewal to the Society on finding the claim of appellant to be fictitious. 12. The Hon'ble Division Bench Rashtriya Junior High School (supra) in paragraph - 4 observed thus : "It is standard law that, if bona fide dispute as to two rival Committee of Managements is shown in existence to the Registrar or the Assistant Registrar, a reference be made of the dispute to the Prescribed Authority, follows as the matter of course." 13. However, the Division Bench observed that there should be a "bona fide dispute" regarding the management and prima facie material must be produced before the Registrar so that he can validly exercise his jurisdiction for referring the dispute. A dispute cannot be said to be a dispute on the asking of the rival Committee of Management. 14. I have considered the law as laid down by the Division Bench relied upon by the counsel for the respondent no. 3 and I find that the case before the Assistant Registrar was not that the petitioners could not produce the papers regarding their elections. The case was that the petitioners had produced certain papers but a doubt was cast on the validity of the election because of concealment referred to in the order impugned. 15. 3 and I find that the case before the Assistant Registrar was not that the petitioners could not produce the papers regarding their elections. The case was that the petitioners had produced certain papers but a doubt was cast on the validity of the election because of concealment referred to in the order impugned. 15. The learned counsel for the respondents has also relied upon a judgment rendered by a coordinate Bench of this Court in the case of Committee of Management, Gyan Bharati Shiksha Sadan, Chitrakoot Vs. State of U.P. and others reported in 2014 (5) ADJ 268 wherein in paragraph 38 it has been observed that the finding with regard to the facts as mentioned in the order impugned of the Assistant Registrar had not been assailed and therefore, this Court could not set aside the finding of the Assistant Registrar sitting in writ jurisdiction, as if it was sitting in a Court of Appeal. The writ court cannot enter into any disputed findings of fact. 16. On the basis of the aforesaid judgment it has been argued by the counsel for the respondent no. 3 that since the finding recorded by the Assistant Registrar has not been assailed by the petitioners before this Court, this Court cannot interfere in the order impugned recording the findings of fact by the Assistant Registrar. 17. I do not think it is necessary for assailing these findings recorded by the Assistant Registrar in the order impugned because petitioner's case as set up before this Court is that of complete lack of jurisdiction by the Assistant Registrar to entertain the dispute which ought to have been referred to the Prescribed Authority. 18. Moreover, the Hon'ble Single Judge in deciding the aforesaid judgment in the case of Gyan Bharati Shiksha Sadan (supra) on 21st of April, 2014 has not considered the Division Bench judgment in the case of Committee of Management, Anjuman Kherul Almin Allahganj and another Vs. State of U.P. and others (supra) decided on 18th of December, 2013. 19. Considering the facts and circumstances as mentioned herein above, with the consent of the parties i.e. the counsel appearing for respondent no. 3 and the petitioners, this Court finds it appropriate to set aside the order impugned dated 01.06.2017 of the respondent no. 2, Assistant Registrar, Varanasi Mandal.. 20. 19. Considering the facts and circumstances as mentioned herein above, with the consent of the parties i.e. the counsel appearing for respondent no. 3 and the petitioners, this Court finds it appropriate to set aside the order impugned dated 01.06.2017 of the respondent no. 2, Assistant Registrar, Varanasi Mandal.. 20. Shri Radha Kant Ojha submitted that even though the order dated 01.06.2017 is set aside by this Court, the consequential order of recognition of list of elected members submitted by Respondent No. 3 need not be disturbed. I disagree. 21. The order dated 01.06.2017 is set aside and as a consequence of setting aside of the order impugned dated 01.06.2017 the list of office-bearers issued under Section 4 as recognized by the Assistant Registrar after recognizing the election of rival Committee of Management of respondent no. 3 is also set aside. 22. In view of the law settled by the Division Bench of this Court in the case of Committee of Management, Anjuman Kherul Almin Allahganj and another Vs. State of U.P. and others (supra) disposes of this writ petition in following terms:- (i). The Assistant Registrar is directed to make a reference under Section 25 (1) of the Societies Registration Act, 1986 to the Prescribed Authority within a period of two weeks from the date of receipt of a certified copy of this order; (ii). The Prescribed Authority shall upon receipt of reference under Section 25 (1) decide the same within a period of three months from the date of receipt of such reference; and (iii). The Assistant Registrar shall thereafter take necessary steps under Section 4 upon the receipt of the order of the Prescribed Authority expeditiously. 21. The writ petition is, thus, disposed of. 22. No order as to costs.