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Allahabad High Court · body

2018 DIGILAW 271 (ALL)

SHIV NATH MISHRA v. STATE OF U. P.

2018-02-01

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—An election was held on 13.3.2007 with an electorate on 56 members. Thereafter 12 members died and 44 members remained. However, when on 12.2.2012, election was again held with 114 members, the respondent No. 2 objected by filing a writ petition which was numbered as Writ Petition No. 54608 of 2012. This writ petition was allowed on 19.10.2012 with the following directions : “I have also heard the learned Standing Counsel who also does not propose to file any counter-affidavit and he prays that the matter be disposed of at this stage itself. Sri Ojha has expressed his apprehension that every time the petitioner has been making applications for transfer of the case. Transfer or re-transfer will hardly make any difference now, inasmuch as, the Court is satisfied that the impugned order dated 19.9.2012 is in violation of principles of natural justice for having not considered the matter in the light of the notice dated 7.9.2012 and the reply submitted by the petitioner. Accordingly, the order dated 19.9.2012 is quashed. The Assistant Registrar is directed to decide the matter again as expeditiously as possible preferably within a period of two months from the date of presentation of a certified copy of this order before him after affording opportunity of hearing to the parties. The matter shall now be transferred to the Assistant Registrar, Firms, Societies & Chits Gorakhpur within whose jurisdiction the entire matter lies and the dispute shall be decided by him without entertaining any application of further transfer. The writ petition is allowed and disposed of with the aforesaid directions. The Assistant Registrar at Allahabad shall transmit the entire records to the Assistant Registrar Gorakhpur forthwith to be decided within two months” 2. Thereafter the Assistant Registrar Firms, Societies & Chits Gorakhpur Mandal, Gorakhpur decided the matter on 13.6.2013 and found that the election held under the provisions of Section 25(2) of the Societies Registration Act, 1860, with a list of 124 members was proper and directed that the society be registered under Section 4 of the Societies Registration Act, 1860. Aggrieved thereof, the respondent No. 2 again filed a writ petition being Writ Petition No. 35749 of 2013 in which the following order was passed on 5.7.2013 : “In the opinion of the Court, acceptance of document after the close of hearing is legally not justified. Aggrieved thereof, the respondent No. 2 again filed a writ petition being Writ Petition No. 35749 of 2013 in which the following order was passed on 5.7.2013 : “In the opinion of the Court, acceptance of document after the close of hearing is legally not justified. After the documents were taken on record, opportunity should have been afforded to the parties concerned to controvert the same, before close of the hearing. Since such procedure has not been followed, in the facts of the case, this Court holds that determination of electoral college under the order impugned based on the document produced on 20.5.2013 cannot be legally sustained. Accordingly, the order of the Assistant Registrar to that extent is quashed. The list appended to the order impugned dated 13.6.2013 comprising of 124 members be treated to be the tentative list. Petitioner is at liberty to file his objections within two weeks from today alongwith a certified copy of this order before the Assistant Registrar who shall finalize the electoral college afresh, after affording opportunity of hearing to the parties concerned, preferably within four weeks from the date the objections are filed. The elections of the office bearers shall be held from the electoral college so determined, within two weeks thereafter. Any person aggrieved by the electoral college or the elections to be held shall be at liberty to proceed under Section 25(1) of the Societies Registration Act or by way of civil suit, only after the elections are over.” 3. The effect of the order dated 5.7.2013 which was passed in Writ Petition No. 35749 of 2013 was that the order of the Registrar dated 13.6.2013 was set aside. The list comprising 124 members was treated as a tentative list and the petitioner therein i.e. respondent No. 2 here was granted the liberty to file his objections against the list within 2 weeks from the passing of the order dated 5.7.2013 by the High Court. The Assistant Registrar, thereafter, upon objections being filed was to finalize the electoral role afresh. He was to provide an opportunity of hearing to all the parties concerned. 4. The record, thereafter, was remitted to the Assistant Registrar, Firms, Societies & Chits Gorakhpur and on 1.10.2013 he issued notices that the matter was to be taken up on 7.10.2013 before the Registrar at Lucknow. He was to provide an opportunity of hearing to all the parties concerned. 4. The record, thereafter, was remitted to the Assistant Registrar, Firms, Societies & Chits Gorakhpur and on 1.10.2013 he issued notices that the matter was to be taken up on 7.10.2013 before the Registrar at Lucknow. However, the Registrar at Lucknow keeping in mind the order of the High Court dated 19.10.2012 placed the matter before the Assistant Registrar, Firms, Societies & Chits Gorakhpur and fixed a date for hearing on 5.12.2013. The matter thereafter proceeded before the Assistant Registrar, Firms, Societies & Chits Gorakhpur. On 13.12.2013, orders were reserved and a final order was passed on 16.12.2013 and the list of 70 members who had been included in the General Body after the election of 13.3.2007 was rejected. Aggrieved thereof the petitioner filed the instant writ petition. 5. The contention of the learned counsel for the petitioner is that after the matter was placed before the Assistant Registrar, Firms, Societies & Chits Gorakhpur on 5.12.2013 he hardly heard the matter and only on the basis of certain submissions/documents which were placed before the earlier officials decided the matter. 6. Learned counsel for the petitioner has further submitted that the Assistant Registrar, Firms, Societies & Chits Gorakhpur wrongly shifted the burden of placing the minute book, cash book, and the receipt book of fee of the members and the bank pass book on the petitioner. He submitted that on the date when the matter was decided Section 4A was definitely incorporated in the Societies Registration Act, 1860. Therefore, he submits that if there was any difficulty for the Assistant Registrar, Firms, Societies & Chits Gorakhpur in coming to a proper conclusion then he should have summoned the original register of the members of the general body, the minute book, cash book and the receipt book of fee of the members. The bank pass book should have also been summoned and the matter could have been, thereafter, decided. 7. Learned counsel for the petitioner further pointed out to the provisions of the by-laws and submitted that no where had it been prescribed as to who would enrol a new member. The only provision was that new general members were to be enrolled on the payment of a fee of Rs. 11/-. 7. Learned counsel for the petitioner further pointed out to the provisions of the by-laws and submitted that no where had it been prescribed as to who would enrol a new member. The only provision was that new general members were to be enrolled on the payment of a fee of Rs. 11/-. He further submitted that the Registrar erroneously concluded that enrolment had to be approved by the general body and submitted that it was only a matter of convention that new members had to be formally inducted after a resolution of a General Body. 8. Further contention of the learned counsel for the petitioner is that the resolution as was passed in the presence of the members of the General Body was definitely placed before the Assistant Registrar, Firms, Societies & Chits Gorakhpur. 9. In reply, learned counsel for the respondent No. 2 has submitted that as per the order dated 5.7.2013, the writ petition itself was not maintainable as the petitioner if was aggrieved by the impugned order should have filed a suit as had been provided by the order dated 5.7.2013. He further submits that when the approval of the general body was not there and in fact 28 members of the general body had by means of notarized affidavits submitted that the 70 members were not enrolled then there was no other option left with the Assistant Registrar, Firms, Societies & Chits Gorakhpur but to reject the list of the 70 members. The further contention of the respondents is that an election was held on 19.1.2014 after the passing of the interim order dated 13.1.2014 in the present writ petition and the results were not being declared only because of the interim order. 10. Having heard the learned counsel for the parties, I am of the view that the order of the Assistant Registrar, Firms, Societies & Chits, Gorakhpur cannot be sustained. The Assistant Registrar, Firms, Societies & Chits Gorakhpur while adjudicating as to whether the 70 members had been correctly enrolled had taken an erroneous approach of the matter. 10. Having heard the learned counsel for the parties, I am of the view that the order of the Assistant Registrar, Firms, Societies & Chits, Gorakhpur cannot be sustained. The Assistant Registrar, Firms, Societies & Chits Gorakhpur while adjudicating as to whether the 70 members had been correctly enrolled had taken an erroneous approach of the matter. The proper method by which the Assistant Registrar, Firms, Societies & Chits, Gorakhpur should have ascertained as to whether the 70 members were enrolled correctly was that he should have summoned the register of the members of the general body, minute books, cash book, receipt book of the members’ fee and the bank pass-book of the society. It did not lie in the mouth of the Registrar to say that these documents were not produced before him. If there was a mandate of the High Court that he had to decide an electoral role then it was his bounden duty to have summoned these documents. Further more, I find that after the record was placed before the Assistant Registrar, Firms, Societies & Chits Gorakhpur on 5.9.2013, arguments were completed on 13.9.2013 i.e. within a period of 8 days. In this short period neither could have the petitioners produced the original documents nor could have the Assistant Registrar, Firms, Societies & Chits Gorakhpur summoned them. What is more, a perusal of the order clearly reveals that the Assistant Registrar, Firms, Societies & Chits Gorakhpur had relied upon certain observations/notings of the earlier incumbents who were there in the office of the Assistant Registrar in year 2012. 11. Under such circumstances, the order dated 16.12.2013 is quashed. The matter is remanded back to the Assistant Registrar, Firms, Societies & Chits Gorakhpur who shall ascertain the electoral roll as per the guidelines provided in Section 4B of the Societies Registration Act, 1860. 12. If he comes to a conclusion that the members who had participated in the election held on 19.1.2014 were correctly enrolled then the election result would be declared otherwise he will make an endeavour to hold elections as per the provisions of 25(2) of the Societies Registration Act, 1860. 13. The writ petition is allowed.