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2019 DIGILAW 750 (ALL)

Katar Singh Baliyan v. State of U. P.

2019-03-26

PANKAJ MITHAL, SAUMITRA DAYAL SINGH

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JUDGMENT : 1. Heard Sri Prabhakar Awasthi, learned counsel for the appellant, learned Standing counsel for respondents no. 1 and 2 and Sri G.K. Singh, Senior counsel assisted by Sri Ashish Kumar Singh and Sri Amit Gupta for respondents no. 6 and 7. 2. The appeal purports to challenge the judgment and order dated 6.12.2018 of the writ Court by which the writ petition of respondent no. 6 has been allowed and the orders passed by the Assistant Registrar, Firms Societies and Chits, Saharanpur dated 25.10.2018 and 13.12.2018 have been quashed. 3. The issue is regarding the membership of the Society managing Chaudhary Chhoturam College, Muzaffar Nagar. 4. The said issue had travelled upto the High Court earlier by means of Special Appeal no. 520 of 2008 which was decided vide judgment and order dated 10.4.2008 . The Division Bench of this Court while deciding the aforesaid Special Appeal specifically directed the Assistant Registrar to first finalize the voters list on the basis of bye laws of the Society and once the voters list is finalized to proceed to prepare the election programme and to hold the elections accordingly. In case, any dispute arise in respect to the voters list so finalized by the Assistant Registrar, the parties concerned will be at liberty to approach the civil court and not by filing any writ petition. 5. On the basis of the aforesaid directions issued by the Division Bench the Assistant Registrar after affording due opportunity of hearing to the rival parties finalized the voter list vide its order dated 11.3.2010 and as many as 63 members were held to be the valid members of the Society. 6. The aforesaid order of the Assistant Registrar was challenged by means of a writ petition but the same was dismissed. The Special Appeal No. 609 of 2010 thereof was also dismissed vide judgment and order dated 13.7.2016 with the clear observation that the issue of membership of a Society can be appropriately examined after oral as well as documentary evidences are led by the parties in a civil suit. 7. The Special Appeal No. 609 of 2010 thereof was also dismissed vide judgment and order dated 13.7.2016 with the clear observation that the issue of membership of a Society can be appropriately examined after oral as well as documentary evidences are led by the parties in a civil suit. 7. In short, both the above Division Benches opined that the membership of the Society has to be determined by the Assistant Registrar in the summary manner and in case any dispute remains thereafter, it will be open for the parties to take recourse to the remedy of civil court rather than approaching this Court in exercise of extra-ordinary jurisdiction. 8. On the basis of the membership list so finalized by the Assistant Registrar fresh elections were also held which were duly recognized and as such there remained no dispute with regard to membership of the Society. 9. Subsequently, it appears that as Section 4-B was added in the Societies of Registration Act, 1860 in the year 2013, the Assistant Registrar was conferred power to examine the membership of each and every Society at the time of registration/renewal of its registration. Thus, when the above Society moved for renewal of its registration, the Assistant Registrar called up the parties for the purposes of examining the correctness of the membership list submitted with the application for renewal of registration. The Assistant Registrar by the order dated 25.10.2018 instead of examining the addition of the new members and the deletion of some of members which may have taken place subsequent to the finalization of the list earlier in the year 2010 held that even the 63 members who were declared to be valid members are not the members of the Society. 10. The Assistant Registrar in order to examine the correctness of the list of the members under Section 4-B of the Act was only required to see the inclusion and deletion of the members and to modify the list accordingly. He was not enjoined upon to go into the validity of the list of the members which had already been finalized in the year 2010 and had attained conclusiveness except for deleting some of those members who may have died or ceased to be the members otherwise. 11. He was not enjoined upon to go into the validity of the list of the members which had already been finalized in the year 2010 and had attained conclusiveness except for deleting some of those members who may have died or ceased to be the members otherwise. 11. The aforesaid order was challenged by filing the present writ petition which has given rise to this appeal and the same has been allowed on the ground that in view of two earlier Division Benches decision the Assistant Registrar was not competent enough to go into the question of determination of membership of the Society again when this Court had specifically directed that in the event of any dispute subsisting after finalization of the list by the Assistant registrar, the parties would take recourse to the proceedings of a civil suit. 12. The submission of Sri Awasthi is that by virtue of Section 4-B of the Act which was introduced subsequently, the Assistant Registrar is competent to examine the list of the members of the Society and as such the writ Court is not justified in holding that there is complete bar on his part to re-examine and re-determine the membership of the Society. 13. Section 4-B of the Act may empower the Assistant Registrar to examine the correctness of the list of the members but it in no way gives him a handle to undo the membership list which had already been finalized by the order dated 11.3.2010 by the Assistant Registrar. In the event, the appellant wants to challenge the correctness of the list of the members that has been finalized in the year 2010, the proper remedy available to him was to approach the civil court as has been directed by the two Division Benches. 14. In view of the aforesaid facts and circumstances, we are of the opinion that the writ Court has rightly allowed the writ petition holding the orders of the Assistant Registrar allegedly passed under Section 4-B of the Act to be without jurisdiction. 15. The appeal lacks merit and is dismissed.