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2018 DIGILAW 2515 (ALL)

Rajesh Mishra v. Commissioner Kanpur Mandal

2018-12-11

BHARATI SAPRU, SAURABH SHYAM SHAMSHERY

body2018
JUDGMENT : Saurabh Shyam Shamshery, J. Cause shown is sufficient. Delay is condoned in view of the facts stated in the affidavit filed along with the delay condonation application. 2. The present special appeal is directed against the order dated 31.10.2018 passed by the learned Single Judge in Writ-C No.34769 of 2018, whereby the said writ petition was allowed and the impugned order dated 27.9.2018 passed by the Commissioner, Kanpur Division Kanpur was set-aside. 3. The controversy involved in the present matter is regarding the management of one Ram Lila Samiti, Gram Derapur, District-Kanpur Dehat. 4. As per the record available, the renewal certificate of the Samiti was lastly issued on 21.4.2015 on the basis of an application filed by Shri Prabhakar Mishra (writ petitioner and respondent no.4 herein) by the Deputy Registrar, Firms Societies and Chits, Kanpur Mandal Kanpur, (hereinafter referred to as respondent no.2) who also directed the parties to appear. 5. The proceedings kept pending and meanwhile respondent no.4 submitted application dated 11.5.2016 and sought renewal of certificate, which was granted on 20.5.2016. 6. Objections were filed against the renewal certificate dated 20.5.2016 and the respondent no.2 vide order dated 13.9.2018, rejected the objections raised by the appellant herein such as the certificate of renewal has been obtained by misrepresentation and fraud, Respondent no.4 is not a resident of Gram Derapur and he has criminal antecedents. 7. The appellant herein challenged the order dated 13.9.2018 by filing an appeal dated 25.9.2018 before the respondent no.2, along with an application seeking stay of the aforesaid order, under Section 12- D (2) of The Societies Registration Act, 1860, (hereinafter called the "Act, 1860") on the ground that the certificate of renewal has been obtained by misrepresentation and fraud. 8. The respondent no.2, entertained the appeal and passed the order dated 27.9.2018, whereby the said appeal was registered and allowed the application for stay and further directed that the order dated 13.9.2018 passed by the respondent no.2 be kept in abeyance till the next date and directed to maintain status quo. 8. The respondent no.2, entertained the appeal and passed the order dated 27.9.2018, whereby the said appeal was registered and allowed the application for stay and further directed that the order dated 13.9.2018 passed by the respondent no.2 be kept in abeyance till the next date and directed to maintain status quo. The relevant part of the order states as under: ^^foi{kh la[;k&2 ds fo}ku vf/koDrk us LFkxu izkFkZuk i= dk fojks/k djrs gq, vius rdZ esa dgk fd foi{kh }kjk laLFkk dk uohuhdj.k fnukad 21-04-2015 dks fnukad 04-03-2015 ls ikap o"kZ ds fy, djk;k x;k gSA inkf/kdkfj;ksa dh lwph fMIVh jftLVªkj dk;kZy; esa nkf[ky dh x;h FkhA fMIVh jftLVªkj dks fdlh izkFkZuk i= dk fuLrkj.k djus dk {ks=kf/kdkj izkIr gS vkSj muds }kjk izkFkZuk i= dk fuLrkj.k fd;k x;k gSA vUr esa LFkxu izkFkZuk i= fujLr djus ij cy fn;kA mHk;i{kksa ds fo}ku vf/koDrk ds rdksZa dks lquus ,oa nksukas i{kksa }kjk nkf[ky fd;s x;s izi=ksa ds voyksdu ls izFke n`"V;k ;g lkfcr gS fd vihykFkhZ ds firk igys mDr laLFkk ds v/;{k jgs gSaA rnksijkUr vihykFkhZ jgk gSA ,slh fLFkfr esa vihykFkhZ fgrc) i{kdkj gSA fMIVh jftLVªkj ds iz'uxr vkns'k dk fØ;kUo;u LFkfxr u djus ls mlds fgrksa dks {kfr igqap ldrh gSA ,slh fLFkfr esa U;k; fgr esa LFkxu izkFkZuk i= Lohdkj fd;k tkrk gSA nksuksa i{k ekSds ij ;FkkfLFkfr cuk;s j[ksA fMIVh jftLVªkj ds iz'uxr vkns'k fnukad 13-09-2018 dk fØ;kUo;u vfxze fu;r frfFk rd LFkfxr fd;k tkrk gSA i=koyh okLrs lquokbZ fnukad 03-10-2018 dks izLrqr gksA^^ 9. Shri Prabhakar Mishra i.e. respondent no.4 filed Writ-C No.34769 of 2018, challenging the order dated 27.9.2018 passed by the Commissioner, Kanpur Division, Kanpur, before the learned Single Judge. 10. The learned Single Judge without calling for counter and rejoinder affidavits, allowed the writ petition by the order dated 31.10.2018 on the ground that the dispute would not fall within the purview of sub-section (1) of Section 12-D of the Act, 1860. The learned Single Judge held that the appeal under sub-section (2) of Section 12-D of the Act, 1860 would not be maintainable and accordingly the order dated 27.9.2018 passed by the Commissioner Kanpur Division Kanpur was set-aside. 11. The learned Single Judge held that the appeal under sub-section (2) of Section 12-D of the Act, 1860 would not be maintainable and accordingly the order dated 27.9.2018 passed by the Commissioner Kanpur Division Kanpur was set-aside. 11. The learned Single Judge held that: "Having considered the objections taken by learned counsel for the respondent no.3 and Shri Anupam Narayan Tiwari as is reflected from the order dated 13.9.2018 passed by the Deputy Registrar, it is more than apparent that the dispute decided by the Registrar was with regard to the validity of the elected Committee which would manage the affairs of the Society. The renewal of registration of the Society would not confer any right in favour of any of the person at whose instance the said action has been taken. Renewal is always in the interest of the Society. The said dispute would not fall within the purview of sub-section (1) of Section 12-D of the Act, 1860. The appeal under sub-section (2) thereof, therefore, would not be maintainable. The order impugned dated 27.9.2018 passed by the Commissioner, Kanpur Division, Kanpur, therefore, cannot be sustained. The present petition is, accordingly, allowed. However, liberty is granted to the contesting respondents to assail the order dated 13.9.2018 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur, Region Kanpur in an appropriate proceeding." 12. The order dated 31.10.2018 passed by learned Single Judge is impugned in the present special appeal. 13. We have heard learned counsels for the parties and perused the record. 14. The order dated 31.10.2018 passed by learned Single Judge is impugned in the present special appeal. 13. We have heard learned counsels for the parties and perused the record. 14. Section 12 D of the Act, 1860 provides as under: "12D Registrar's power to cancel registration in certain circumstances.-(1) Notwithstanding anything contained in this Act, the Registrar may, by order in writing, cancel the registration of any society on any of the following grounds:- (a) that the registration of the society or of its name or change of name is contrary to the provisions of this Act or of any other law for the time being in force; (b) that its activities or proposed activities have been or are or will be subversive of the objects of the society or opposed to public policy; [(c) that the registration or the certificate of renewal has been obtained by misrepresentation or fraud:] Provided that no order of cancellation of registration of any society shall be passed until the society has been given a reasonable opportunity of altering its name or object or of showing cause against the action proposed to be taken in regard to it. [(2) An appeal against an order made under sub-section (1) may be preferred to the Commissioner of the Division in whose jurisdiction the Headquarter of the society lies, within one month from the date of communication of such order. (3) The decision of the commissioner under sub-section (2), shall be final and shall not be called in question in any court.]" 15. Division Bench of this High Court in the case of Kranti Kumar Chaturvedi & Ors. Vs. District Inspector of Schools, Kanpur Dehat & Ors, reported in 1995 (3) E.S.C. 166 (All) has held that: "5. Section 12-D (1) (c) comes into play when an allegation is made that a body, claiming office bearers of a society, by misrepresenting facts or practicing fraud, has obtained the registration of a society or its renewal. If such allegation is made, the Registrar necessarily has to go into the question of validity of the constitution of a society applied for renewal of certificate of registration. Entitlement of the Office bearers of a society who apply for renewal of certificate of registration depends upon their valid constitution. If such allegation is made, the Registrar necessarily has to go into the question of validity of the constitution of a society applied for renewal of certificate of registration. Entitlement of the Office bearers of a society who apply for renewal of certificate of registration depends upon their valid constitution. Otherwise any fake body claiming office bearers of a society by misrepresenting facts may get renewal of certificate of registration of society in its name. Thus, it is open to the Registrar to go incidentally to the question of validity of Constitution of society, which has been granted renewal of certificate of registration, if any objection is raised that the office bearers who had applied for and has been granted renewal of certificate of registration is fake body and has obtained renewal by misrepresenting facts or by practicing fraud. However, in such proceeding an enquiry is limited to this extend, firstly, that office bearers who applied for and has been granted renewal of certificate of registration of society is legally entitled to it or not and secondly, whether the body who applied for, has obtained renewal of certificate of registration by misrepresentation or by practicing fraud or not. If in this proceeding it is found that the body, who applied for, has obtained renewal of certificate of registration by misrepresentation or by practicing fraud or not. If in this proceeding it is found that the body, who applied for and has been granted renewal of certificate of registration is not legally entitled to it and further it has obtained by misrepresenting facts or by practicing fraud, it is open to the Registrar to cancel the renewal of certificate of registration granted in favour of such a body." "6. Section 25 of the Act contemplates different situation. It is attracted only when there is no dispute in respect of registration of society or its renewal of certificate of registration but there is dispute between two rival parties each of whom is claiming to be validly elected body. In such a situation the dispute between the two rival parties has to be referred for adjudication under Section 25 of the Act. Section 25 of the Act is also attracted when a party challenges the illegality or otherwise of the election of particular set of office bearers of society on the grounds enumerated in Section 25 of the Act. In such a situation the dispute between the two rival parties has to be referred for adjudication under Section 25 of the Act. Section 25 of the Act is also attracted when a party challenges the illegality or otherwise of the election of particular set of office bearers of society on the grounds enumerated in Section 25 of the Act. Thus the dispute under Section 25 of the Act can only be referred for adjudication only when it is found that the registration of the society or its renewal is intact. In the present case, since the objection was that the appellants are not legally elected body and have obtained renewal of certificate of registration by practicing fraud, it was well within the jurisdiction and power of the Registrar to entertain such objection and decide the same. The decisions relied upon by the learned counsel for the appellants in the case of Khapraha Educational Society and anothers (supra) is not applicable to the facts of the present case and is distinguishable. We are of the view that the order passed by the Registrar was well within his jurisdiction and the same is appeal able under Section 12-D of the Act." (Emphasis applied) 16. The respondent no.2 vide order dated 13.9.2018, had refused to cancel the renewal certificate of the society, which was objected by the appellant on the ground that the certificate of renewal dated 20.5.2016 was obtained by misrepresentation and fraud, which is a specific ground under Section 12-D (1) (c) of the Act, 1860 for cancellation of registration of a society. Therefore, an appeal against the order dated 13.9.2018, which had been passed under Section 12-D (1) of the Act, 1860, could be preferred under Section 12-D (2) of the Act, 1860. 17. The appellant herein has rightly followed the remedy as provided under the Act, 1860 and preferred an appeal under Section 12-D (2) of the Act, 1860 before the Commissioner, Kanpur Division, Kanpur and the appeal was entertained and after considering the rival submissions, order dated 27.9.2018 was passed whereby order dated 13.9.2018 was kept in abeyance. The order dated 27.9.2018 was impugned before the learned single Judge. 18. The order dated 27.9.2018 was impugned before the learned single Judge. 18. The reasoning given by the learned Single Judge that the dispute would not fall within the purview of sub-section (1) of Section 12-D of the Act, 1860, therefore, the appeal filed under sub-section (2) of Section 12 of the Act, 1860 would not be maintainable, is not the correct interpretation of the scheme of Section 12-D of the Act, 1860 and the appellant cannot be denied a legal remedy of right to appeal as provided under Section 12 (D) (2) of the Act, 1860. 19. The right of appeal given by the statute is a valuable right and it cannot be taken away without adherence to it. 20. It is clear from the facts of the present case that certificate of renewal dated 20.5.2016 was objected on the ground of misrepresentation and fraud, therefore, dispute squarely falls within the purview of Section 12 (D) (1) (c) of the Act, 1860 and an appeal under Section 12 (D) (2) is therefore maintainable. 21. The judgment passed by Division Bench of this Court in the matter of Kranti Kumar Chaturvedi (supra) squarely applies to the factual matrix of the present case. 22. Accordingly, we allow the Special Appeal and set aside the order dated 31.10.2018 passed by the learned Single Judge in Writ-C No.34769 of 2018. 23. No order as to costs.