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2018 DIGILAW 84 (ALL)

Vahabuddin v. State of U. P.

2018-01-09

SAUMITRA DAYAL SINGH, TARUN AGARWALA

body2018
JUDGMENT : SAUMITRA DAYAL SINGH, J. 1. This special appeal has been filed against the judgment of the learned Single Judge dated 23.10.2017 in Writ C No. 42727 of 2017. By that judgment, the learned Single Judge while allowing the writ petition, set aside the order dated 11.07.2017 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur and issued directions to make a fresh inquiry under Section 4-B of the Societies Registration Act, 1860 (hereinafter referred to as the 'Act'). 2. Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri J.P. Singh, learned counsel for the appellant and Sri Vijay Kumar Singh, learned counsel for the petitioner respondents. 3. There is a society by the name of Sri Jawaharlal Nehru Madhyamik Vidhyalaya, Khera Bujurg, Post-Dhanua, District-Etawah. In respect of that Society, the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur passed an order dated 11.07.2017 whereby he rejected as not maintainable a complaint made by one Nem Singh Yadav and Shishu Pal Singh Bhadauria. He further rejected the representations made by Smt. Mahadevi Verma dated 22.10.2016 and Sri Vahabuddin dated 10.01.2017 and 21.01.2017, in respect of the list of members furnished by the aforesaid two persons. He further held that only three members of the General Body of the aforesaid society were alive at present and that the last elections of the Committee of Management of the Society were held in the year 1994. Therefore, he directed fresh elections to be held under Section 25(2) of the Act. 4. At that stage Writ C No. 34180 of 2017 was filed on behalf of the two petitioners who described themselves as below: "1. Committee of Management, Shri Jawahar Lal Nehru Madhyamik Vidhyalaya, Khera Bujurg, Post Dhanua, District Etawah (now Trust/Nyas w.e.f. 14.9.2016), through its Manager Shri Bhuvnesh Kumar. 2. Bhuvnesh Kumar Son of Late Tula Ram Verma, Resident of Khera Bujurg, Post Office-Dhanua, District-Etawah, manager of Committee of Management, Shri Jahawar Lal Nehru Madhyamik Vidyalaya, Khera Bujurg, Post-Dhanua, District-Etawah (now Trust/Nyas w.e.f. 14.9.2016.)" 5. In that writ petition, the aforesaid petitioners challenged the order dated 11.07.2017 chiefly on the ground that the Society had already been converted into a trust before the aforesaid order was passed and therefore, the said order was bad. 6. In that writ petition, the aforesaid petitioners challenged the order dated 11.07.2017 chiefly on the ground that the Society had already been converted into a trust before the aforesaid order was passed and therefore, the said order was bad. 6. At that stage itself, it was admitted to the second petitioner i.e. Bhuvnesh Kumar who himself claimed to be a manager of the Committee of Management of the aforesaid institution (petitioner no. 1) that he was a member of the Society but had become a trustee of the trust that was claimed to have been created on 14.09.2016. 7. The aforesaid writ petition was dismissed with the following observation: "As complex questions of fact would be involved for adjudicating the issues raised, it would be appropriate that the petitioner seeks declaration of his right in a civil suit. Accordingly, this petition is disposed of with liberty to the petitioner to seek declaration of his right as also such other appropriate relief to which he may be advised in a civil suit." 8. Against the aforesaid order of the learned Single Judge, Special Appeal No. 432 of 2017 was filed by the above described two petitioners along with Smt. Mahadevi Verma (who is the mother of Bhuvnesh Kumar-petitioner no. 2). The aforesaid special appeal was dismissed by the following order: "After the matter was heard at some length Mr. V.K. Singh, learned counsel for the appellants stated that so long the facts as stated in the writ petition filed on behalf of the appellants No. 1 and 2 stand on record the order of the learned Single Judge can warrant no interference in exercise of powers under Chapter VIII Rule 5 of the Allahabad High Court Rules in this intra court appeal. However, he submits that the President appellant No. 3 was a party to the writ proceedings and therefore his rights may be jeopardized because of the order passed in the writ court. He therefore submits that the present appeal may be dismissed as pressed leaving the rights of appellant No. 3 open to be agitated before the appropriate forum. In view of the statement so made the present appeal is dismissed as pressed with liberty as aforesaid. However, we clarify that this order will affect the rights of the President-appellant No. 3 as may be available to him in accordance with law." 9. In view of the statement so made the present appeal is dismissed as pressed with liberty as aforesaid. However, we clarify that this order will affect the rights of the President-appellant No. 3 as may be available to him in accordance with law." 9. It is at that stage that Writ C No. 42727 of 2017 was filed on behalf of eleven petitioners as below: "1. Committee of management of Shri Jawahar Lal Nehru Madhyamik Vidyalaya, Khera Bujurg, Post-Dhanua, District-Etawah through its President Smt. Mahadevi Verma 2. Smt. Mahadevi Verma Wife of Tula Ram Verma President of the committee of management of Shri Jawahar Lal Nehru Madhyamik Vidyalaya, Khera Bujurg, Post-Dhanua, District-Etawah 3. Subhash Babu Son of Gayadin Dhanuk - Vice President 4. Ramesh Babu Son of Phool Singh Jatav - Member Petitioner Nos. 3 & 4 Residents of Village Khera Bujurg, P.O.-Dhanua, District Etawah 5. Rajesh Kumar Son of Sita Ram Member Resident of Village Pai Kharpari, Mainpuri 6. Bimla Devi Wife of Shri Ram Verma Member Resident of Sadipur Jasrana, Firozabad 7. Sukh Devi Wife of Shri Baijant Ram Member Resident of Kari Khera, Sirsaganj, Firozabad 8. Savita Kumari Wife of Shri Brahmanand - Member Resident of Pura Gobardhan Yamuna Bridge District Agra 9. Ram Avtar Son of Shri Nathu Ram Member Resident of Village Noorpur Jasrana, Firozabad 10. Smt. Duddi Devi Wife of Shri Rustam Singh - Member Resident of Shadipur Jasrana, Firozabad 11. Ram Ratan Verma Son of Shri Laxmi Narayan - Member Resident of Village Khera Bujurg, P.O.- Dhanua District-Etawah" 10. The aforesaid petitioners again sought to challenge the order dated 11.07.2017 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur. Upon this writ petition being filed, a preliminary objection appears to have been raised before the learned Single Judge as to the maintainability of the second writ petition. In this regard, vide an order dated 15.09.2017, the learned Single Judge observed as below: "The earlier writ petition was filed by the Committee of Management of Sri Jawahar Lal Nehru Madhyamik Vidyalaya, Khera Bujur, Dhanua, District Etawah by claiming that it had turned into a trust with effect from 14.09.2016 and its Manager was Bhuvnesh Kumar. In this regard, vide an order dated 15.09.2017, the learned Single Judge observed as below: "The earlier writ petition was filed by the Committee of Management of Sri Jawahar Lal Nehru Madhyamik Vidyalaya, Khera Bujur, Dhanua, District Etawah by claiming that it had turned into a trust with effect from 14.09.2016 and its Manager was Bhuvnesh Kumar. The present petition has been filed by the Committee of Management of Sri Jawahar Lal Nehru Madhyamik Vidyalaya Khera Bujur, Dhanua, District Etawah by claiming it to be a Society and represented by Smt. Mahadevi Verma, who claims herself to be the President. If the Committee of Management of the institution is one and the same and the earlier petition, filed by the Committee of Management through its Manager, having been dismissed, the second petition may be maintainable. However, the learned counsel for the petitioners has submitted that this petition has been presented by the Committee of Management of the Society and by the Trust and therefore this petition would be maintainable. What would be relevant to ascertain is whether Bhuvnesh Kumar who had presented the earlier petition is part of the Committee of Management of the Institution concerned; and whether there are two separate Committees of the Institution. If he is part of the management of the institution, then who is the Manager of the Institution because the name of the Manager of the Institution is conspicuous by its absence in the array of the petitioners who are before this Court in the present petition. To clarify the aforesaid position, this Court considers it appropriate to direct the petitioners to file a supplementary affidavit explaining the aforesaid circumstances with reference to the Bye-laws of the Society." 11. In the supplementary affidavit that came to be filed in pursuance of the aforesaid order, Smt. Mahadevi Verma specifically stated that Bhuvnesh Kumar was never enrolled as a member in the General Body of the Society and he was never elected as office bearer of the Committee of Management of the Society. However, she did disclose the name of the manager, if any, of the Committee of Management. 12. However, she did disclose the name of the manager, if any, of the Committee of Management. 12. By the impugned order, while allowing the writ petition, the learned Single Judge has held that even if it be assumed that Smt. Mahadevi Verma could establish her membership, the Managing Committee of the Society could have become defunct and it would remain open for the remaining members of the Committee of Management of the Society to elect another manager for the remaining term. The writ petition was therefore held maintainable at the instance of petitioner nos. 3 to 11. On merits the learned Single Judge set aside the order dated 11.07.2017 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur and issued directions to make a fresh inquiry under Section 4-B of the Societies Registration Act, 1860 (hereinafter referred to as the 'Act'). 13. Learned Senior Counsel appearing for the appellant assailing the judgment of the learned Single Judge, in the first place has submitted that under the original bye-laws as also amended bye-laws under clause 14 only the manager/secretary of the Society had the right to institute proceedings in a court of law. The present petition has been filed on behalf of the Society or the Committee of Management has been filed by the manager and therefore it was maintainable. He then submits that individuals claiming themselves to be a member of the Committee of Management did have any right to approach this Court by filing the writ petition. 14. Then, it has been submitted that the earlier writ petition (34180 of 2017) was dismissed and it was directed that disputed question of facts were involved and therefore the parties may get their rights declared by filing a civil suit. That order having been confirmed in Special Appeal No. 432 of 2017, it was no longer open to the present petitioners to approach this Court again, against the order dated 11.07.2017. These petitioners should also have been relegated to suit remedy. 15. While opposing the appeal, Sri V.K. Singh, learned counsel for the petitioner-respondents submits that the earlier writ petition had been filed on behalf of the trust whose rights are governed by the order passed in that writ petition. He submits that the present petitioners were parties in the aforesaid writ petition and therefore they could be held bound by the order passed therein. He submits that the present petitioners were parties in the aforesaid writ petition and therefore they could be held bound by the order passed therein. He submits that the preliminary objection raised by the present appellant was misconceived and has been rightly rejected by the learned Single Judge. 16. Having considered the arguments so advanced by learned counsel for the parties, we find in the first place it is the case of the petitioners that there existed two Committees of management, one that approached this Court by means of the earlier Writ Petition No. 34180 of 2017 and the other that has filed the present petition. In this regard, it may be further noted that Bhuvnesh Kumar (son of Smt. Mahadevi Verma), had filed the earlier writ petition claiming that the society had been transformed into a trust. He claimed himself to be a manager of that Committee of Management. In the Special Appeal No. 432 of 2017 arising from the order passed in the earlier writ petition, Smt. Mahadevi Verma had joined that special appeal against an application for leave to appeal. In respect of her right, the Special Appeal Court had clarified that the order passed in the Special Appeal will affect her rights. 17. Insofar as the present petition has been filed, it is clearly seen that the same has been filed on behalf of the Committee of Management of the institution through Smt. Mahadevi Verma, who has disclosed herself to be the president of the petitioner's Committee of Management. 18. Undisputedly, despite specific order dated 15.09.2017 in respect of maintainability of the writ petition, Smt. Mahadevi Verma neither disclosed the name of the Manager/Secretary of the Institution or the Committee of Management. At the same time, under the bye-laws, it cannot be disputed that the Committee of Management could have been represented only through the Secretary/Manager of the institution. Thus, clearly the second writ petition on behalf of the Committee of Management was maintainable for that reason. 19. Then, the learned Single Judge has found that even if the second writ petition was maintainable on behalf of the petitioners no. 1 and 2 i.e. Committee of Management and Smt. Mahadevi Verma, yet the same would be maintainable on behalf of the petitioners no. 3 to 11 (in that writ petition). We are in agreement with the same. 19. Then, the learned Single Judge has found that even if the second writ petition was maintainable on behalf of the petitioners no. 1 and 2 i.e. Committee of Management and Smt. Mahadevi Verma, yet the same would be maintainable on behalf of the petitioners no. 3 to 11 (in that writ petition). We are in agreement with the same. The Committee of Management being one, it could act and be represented in Court only in accordance with law. Undisputedly, the Committee of Management could have been represented only through the Secretary/Manager of the institution. None of the petitioners no. 3 to 11 have disclosed or claimed themselves to be the Manager/Secretary of the Committee of Management. Therefore they could maintain the writ petition. 20. In view of the fact that none of the petitioners ever claimed themselves to be the Secretary/Manager, the observation made by the learned Single Judge that it was open for the remaining members of the Committee of Management of the society to elect another manager is of no consequence. Therefore, the conclusion drawn by the learned Single Judge that the writ petition was maintainable at the instance of the petitioner nos. 3 to 11 cannot be sustained. The individuals who may be claiming to be members of the Committee of Management did ever acquire a right to file a writ petition on behalf of the Committee of Management. 21. In the earlier writ petition, while testing order dated 11.7.2017 passed by the Deputy Registrar (Firms, Societies and Chits) Kanpur Region, Kanpur, the learned Single Judge had clearly observed that complex questions of fact would be involved and it would be appropriate that the petitioner seeks declaration of his right by filing a civil suit. In this regard, learned counsel for the petitioners-respondents submits that while Bhuvnesh Kumar was never admitted as the member of the society and he had claimed that the society had dissolved upon its conversion into a trust, Smt. Mahadevi Verma had never raised such pleadings. In any case she was a member of the society and therefore, Smt. Mahadevi Verma cannot be treated as party with Bhuvnesh Kumar. 22. The difference in the basis of the claim raised by Smt. Mahadevi Verma and petitioner nos. In any case she was a member of the society and therefore, Smt. Mahadevi Verma cannot be treated as party with Bhuvnesh Kumar. 22. The difference in the basis of the claim raised by Smt. Mahadevi Verma and petitioner nos. 3 to 11 in this writ petition and Bhuvnesh Kumar apart, cannot be lost sight of the fact that a co-ordinate bench vide its order dated 23.8.2017 in Special Appeal No. 432 of 2017 had merely observed that the dismissal of that special appeal would affect the rights of Smt. Mahadevi Verma. However, the said direction did imply that Smt. Mahadevi Verma and petitioner nos. 3 to 11 could file a writ petition on behalf of the Committee of Management. 23. Also, it is seen that before the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur, the claim raised by Smt. Mahadevi Verma was also dealt with and rejected in absence of cogent material or evidence in support thereof. She was found to be a validly inducted member of the society. In this regard, the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur had found only three persons to be valid and surviving member of the society being Sri Vahabuddin, Sri Jagdish Murari Mishra and Deenanath. The claims made by all other persons were found acceptable. 24. In so far as the individual rights of Smt. Mahadevi Verma and other petitioners (individuals) are concerned, they have been found to be validly inducted members of the society. Further adjudication in that regard would require a finding of fact to be recorded upon appraisal of evidence which remedy may be available to her and other petitioners (3 to 11) by filing a civil suit. 25. For the reasons stated aforesaid, the order passed by the learned Single Judge cannot be sustained and is set aside. We hold that the writ petition was not maintainable. The Special Appeal is allowed. The order of the learned Single Judge is set aside. The writ petition is dismissed, leaving it open to the petitioner nos. 2 to 11 to seek declaration of their rights in appropriate suit proceedings. 26. A copy of this order shall be placed on the record of the Writ C No. 42727 of 2017.