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Allahabad High Court · body

2021 DIGILAW 1181 (ALL)

Vijay Bahadur v. State Of U. P.

2021-10-05

PANKAJ BHATIA

body2021
JUDGMENT : 1. Heard Shri Y.K. Saxena, Advocate appearing on behalf of petitioner in Writ-A No. 13256 of 2021 as well as in Writ-C No. 14759 of 2021 as well as Shri M.C. Chaturvedi, learned Additional Advocate General assisted by Shri Naushad Siddiqui, learned Standing Counsel on behalf of State. 2. The present writ petition has been filed by the 22 persons claiming themselves to be the employees of The Georgina McRobert Memorial Hospital, 14/112, Civil Lines, Kanpur Nagar. In the present writ petition, the petitioners have alleged and argued that the petitioners are the employees, who were not being paid their salaries and the second claim of the petitioners is that by virtue of their employment, they are entitled to retain the properties in their occupation in the premises 14/112, Civil Lines, Kanpur Nagar, from which they have been threatened to be evicted and as such have approached this Court. 3. As the issue raised in the present writ petition are intrinsically linked to Writ-C No. 14759 of 2021, Writ-C No. 17749 of 2019 and Writ-C No. 17779 of 2019, this Court vide order passed on 30th September, 2021 had directed the matter to be listed along with records of the said writ petitions. 4. In terms of the said directions, the matter are listed. As the claim made in the petition cannot be decided without deciding the issues raised in the other writ petition, i:e Writ-C No. 14759 of 2021 as such the said writ petition is also being disposed off by means of the present order. 5. The facts that emerge on account of dispute in between the parties is that a Society in the name of The Georgina McRobert Memorial Hospital, 14/112, Civil Lines, Kanpur Nagar. was registered on 30th November, 1919 under the U.P. Societies Registration Act. to manage and run a prestigious hospital, namely The Georgina McRobert Memorial Hospital at Kanpur providing one of the best medical facilities to the residents of Kanpur. The Society has its own bye-laws. In terms of the bye-laws of the Society, the Board of Governors were managing the affairs, consisting of 11 Governors. to manage and run a prestigious hospital, namely The Georgina McRobert Memorial Hospital at Kanpur providing one of the best medical facilities to the residents of Kanpur. The Society has its own bye-laws. In terms of the bye-laws of the Society, the Board of Governors were managing the affairs, consisting of 11 Governors. With the passage of time, the society could not manage the affairs of the Hospital effectively and the whole purpose of the society got adversly effected, however, as the society was in possession of huge piece of land and building and the society was on verge of financial bankruptcy, the land sharks and unsocial elements found the assets of the society an easy prey . As with the passage of time, three members of the Board of Governors left Kanpur or died, disputes arose amongst the remaining eight members, initially the dispute related to induction and resignations of two members namely Mr.Ananad Swaroop and Mr. Nitin Gupta, which resulted in various litigation upto this Court in a second series of attempt by the minority group of members in Board of Governors, to out number the majority group of five members, proposed to hold a meeting for inducting three persons namely Kamal Bhatia, Navin Darolia and Sandeep Kansal, who claimed to be reputed residents of Kanpur and proposed to donate Rs. 25 Lakhs each to the Hospital on their being inducted as members of the society and also being inducted to the Board of Governor. 6. In a meeting convened on 14.3.2019, they were made the Members/Governors of the Society. It was alleged by majority faction of the society that no verification of the said three persons with regards to their antecedents was recorded and no notice of the said meeting was given to the rest of members of the Board. 7. The said three persons inducted are, the petitioner no. 2, petitioner no. 5 and the petitioner no. 6 in Writ-C No. 14759 of 2021. 8. After the induction of three member a list of members of the Board of Governors was filed with the Deputy Registrar, the said list and induction of the three persons was opposed by existing Board of Governors who filed objections before the Registrar complaining of the manner, in which the meeting was conducted and the three persons were co-opted. 8. After the induction of three member a list of members of the Board of Governors was filed with the Deputy Registrar, the said list and induction of the three persons was opposed by existing Board of Governors who filed objections before the Registrar complaining of the manner, in which the meeting was conducted and the three persons were co-opted. The deputy registrar by his notice dated on 25.3.2019 called upon the parties to appear before him and to submit their response. The said hearing came to be challenged in Writ Petition No. 12530 of 2019, which was disposed off vide order dated 11.4.2019, directing the Deputy Registrar to pass final orders in regard to the dispute raised by the Board of Governors. 9. In terms of the directions given, an order came to be passed on 10.5.2019 holding that the induction of three persons was arbitrary and the meeting held on 14.3.2019 was held to be bad in law. 10. The said order dated 10.5.2019 was challenged by one Sandeep Kansal and another vide W.P.no 17779 of 2021. Similar writ petition was also filed by Society through its secretary Kamal Bhatia and five persons challenging the order dated 10.5.2019 vide Writ-C No. 17749 of 2019. In one of the writ petition being Writ-C No. 17749, as an interim measure, only to protect the interest and running of the Hospital, this Court passed an order on 3.7.2019 permitting the petitioners of Writ-C No. 17749 of 2019 to operate bank accounts to meet the expenses of the Hospital. No order was passed reviving the quashed resolution dated 14.3.2019. 11. The facts emerge, that the three persons who were elected in the meeting dated 14.3.2019 lost their claim as the resolution dated 14.3.19 stood set aside vide order dated 10.5.2019 which is challenged in the Writ-C No. 17749 of 2019 and Writ-C No. 17779 of 2019 pending before this Court. 12. As the strength of the Board of Governors had fallen to Eight members, five of the remaining Board of Members finding it difficult to run the Hospital, wrote a letter to the Secretary on 8.1.2021 seeking to convene a meeting, the agenda being the dissolving the Society. 12. As the strength of the Board of Governors had fallen to Eight members, five of the remaining Board of Members finding it difficult to run the Hospital, wrote a letter to the Secretary on 8.1.2021 seeking to convene a meeting, the agenda being the dissolving the Society. In the explanatory statement of said agenda, it was recorded that the Society was found with an object to taken over the Hospital from Sir Alexander, however, despite running the Hospital for 100 years, in the last two years, the Hospital was on the verge of being shut down and the Society was unable to meet its liabilities and obligations even with regard to the payment of the electricity bills, etc. A decision was to be taken with regard to the closure of the Society. 13. The Secretary, the petitioner no. 3 in Writ-C No. 14759 of 2021, wrote a letter that he was no more the Secretary of the Society and as such the requisition letter was wrongly sent to him and he also informed that as the disputes with regard to the membership is pending before the High Court in Writ-C No. 17749 of 2019 and Writ-C No. 17779 of 2019, it would be improper to call a meeting as proposed. In any event, a meeting came to be held on 14th February, 2021, wherein a decision was taken by five members present, four in person and one through power of attorney out of the Eight members, to dissolve the Society under the provisions of Societies Registration Act and a laudable agenda was passed to donate the entire assets of the Society, after meeting out its liabilities and obligations, to the Government of Uttar Pradesh for establishing a multi-speciality hospital for the people of Kanpur. 14. The Deputy Registrar, Firms, Societies and Chits, Kanpur, proceeded to pass an order dated 25.2.2021, taking into account the resolution dated 14th February, 2021 accepting the same wrote a letter to the District Magistrate for taking effective steps in pursuance to the resolution and in pursuance to the donation of the property in favour of the State of U.P. 15. The Deputy Registrar, Firms, Societies and Chits, Kanpur, proceeded to pass an order dated 25.2.2021, taking into account the resolution dated 14th February, 2021 accepting the same wrote a letter to the District Magistrate for taking effective steps in pursuance to the resolution and in pursuance to the donation of the property in favour of the State of U.P. 15. After a series of communication, the State Government took a decision on 26.7.2021, whereby the Nazul lease granted in favour of the Society was cancelled and it was directed that the records be amended to incorporate the following ‘Un-awantit Sarkari Bhumi’, simultaneously therewith, an order was passed constituting of a Committee of three persons, namely, the ADM (City), Chief Medical Officer and Additional District Magistrate Sadar to act as administrators for running of the affairs. In the said order, it was recorded that the State Government has approved the actions. 16. In pursuance to the action taken by the State Government cancelling the lease granted in favour of the Society, notices were issued to the petitioners of Writ-A No. 13256 of 2021 directing them to vacate the premises vide order dated 24.8.2021, against which the petitioners of Writ-A No. 13256 of 2021 have filed the present writ petition alleging that on the one hand, they have not been paid their wages and on the other hand they are being threatened with forcible eviction. The allegations is that the petitioners have not been paid the amount of their wages since long. 17. The facts that emerge and recorded above are that five of the Eight members of Board of Governors representing three-fifth of the total strength of the remaining members passed a resolution dissolving the Society in terms of the mandate of Section 13 of the Act. Section 13 of the Societies Registration Act is quoted hereinbelow:- “13. 17. The facts that emerge and recorded above are that five of the Eight members of Board of Governors representing three-fifth of the total strength of the remaining members passed a resolution dissolving the Society in terms of the mandate of Section 13 of the Act. Section 13 of the Societies Registration Act is quoted hereinbelow:- “13. Provision for dissolution of societies and adjustment of their affairs.-Any number not less than three-fifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities, according to the rules of the said society applicable thereto, if any, and, if not, then as the governing body shall find expedient provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal Court of original civil jurisdiction of the district in which the chief building of the society is situate; and the Court shall make such order in the matter as it shall deem requisite: Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by their votes delivered in person, or by proxy, at a general meeting convened for the purpose: Provided that 1[whenever any Government] is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved 2[without the consent of the Government of the 3[State] of registration].” 18. This Court in the case of C/M Maharshi Kapil Muni Shiksha Samiti and Another Vs. State of U.P. and Another, Writ-C No. 19885 of 2020, decided on 8.12.2020 has already held that in terms of the requirement of Section 13 of the Societies Registration Act, no approval is required from the Sub-Registrar and any dispute among the governing body members or the members of the Society is to be referred to the Principal Court of original Civil jurisdiction of the District, in which the chief building of the Society is situate and that Court alone shall pass such order in the matter as it may deem fit. 19. 19. From the facts it is clear that a prestigious Society owing valuable piece of land in the heart of city of Kanpur Nagar is being attempted to be taken over through back door entries and finally a resolution has been passed dissolving the Society in terms of Section 13 of the Act, as such from the date of passing of the resolution, legally there is no Society left. It is also borne from the records that no proceedings have been initiated before the principal Court of original civil jurisdiction in respect of any dispute in between the members of the Society or the governing body. On the face of the resolution, the same has been passed in accordance with Section 13 and any dispute in that regard can only be entertained by the principal Court of original civil jurisdiction. 20. There being no such dispute raised, it is not understandable as to how a dissolved Society could file Writ-C No. 14759 of 2021 and how the petitioner no. 2 of Writ-C No. 14759 of 2021 can claim himself to be the Secretary of the Society, once, his membership through a resolution has been set aside vide order dated 10.5.19 he is legally not even a member and consequently he can't claim to be a secretary. In any view the contention in Writ Petition No. 14759/2021 is that Section 13 providing for three-fifth members has to be read in consonance with the requirement of strength provided in bye laws of the society which argument merits outright rejection as the statutory provision will prevail over bye-laws. 21. As of today legally there is no Society in existence from the date of passing of the resolution dissolving the Society and there being no challenge before the Principal Court of original civil jurisdiction, I have no hesitation in holding that the Writ-C No. 14759 of 2021 could not have been filed by the petitioners, who have no locus, specially petitioner no. 1(which stands dissolved), Petitioner No 2, Petitioner No 5 and Petitioner No 6 (who are neither the members nor members of Board of Governors) and with regard to the other persons i.e. Petitioners nos. 3 and 4 the only recourse open was to approach the Principal Court of original civil jurisdiction, which has admittedly not been done. 22. 1(which stands dissolved), Petitioner No 2, Petitioner No 5 and Petitioner No 6 (who are neither the members nor members of Board of Governors) and with regard to the other persons i.e. Petitioners nos. 3 and 4 the only recourse open was to approach the Principal Court of original civil jurisdiction, which has admittedly not been done. 22. The other fact that is clear from the whole narrative is that the cancellation of the Nazul lease has not been challenged and only the order communicating the cancellation of the Nazul lease is under challenge, as the same was done through the order dated 17.6.2021 by the State Government. 23. It is also clear is that the State Government has taken a decision to take over the Hospital and to construct a multi-speciality Hospital. 24. The legal status of the petitioners of writ petition no 13256/21, even as per their own showing is that of a licencee of the Society which was the lessee of the land which is a Nazul Land, the Lessor being the State. Once the Lease has come to an end and there is no challenge to the cancellation of Lease, the Licencee on his own cannot have an enforceable right in respect of property rights. 25. In view of the fact that the Government has taken a decision to take over the Hospital, the assets and liabilities have to be taken simultaneously, As the petitioners of Writ-A No. 13256 of 2021 were the employees of the dissolved Society, this Court expects that the State shall take into account the services rendered by them and shall take a decision with regard to the payment of their dues, to which they claim. 26. It is made clear that this Court has not gone into the merits of the claim of the employees with regard to their wages. 27. As the Society has been dissolved, the land of the Society stands vested in the State after the cancellation of the lease and the administration is now with the committee constituted by the District Magistrate, this Court directs that the Committee constituted by the District Magistrate vide order dated 26.7.2021 shall take into consideration the contentions of the workers and if required the District Magistrate will pass requisite orders keeping in view the welfare of the employees. 28. 28. The writ petition being Writ-A No. 13256 of 2021 is disposed off with directions that the petitioner shall approach the District Magistrate by filing their representation, which shall be considered by the District Magistrate, Kanpur either himself or through a Committee to be appointed by him with regard to the arrears of wages claimed by them and with regard to their occupation on the land of the Society. This measure is being directed only on humanitarian grounds as the petitioners do not have any legal rights over property. 29. In the peculiar facts of the case following directions are issued: i) The Chief Secretary, State of UP is directed to take all requisite measures to expeditiously establish a multi speciality hospital over the land in question in terms of decision of the State Government and to ensure that the valuable assets as handed over by the erstwhile society to the State in terms of their resolution are not frittered away. ii) The District Magistrate, shall take immediate steps to take control of the properties and administration of the hospital and all its activities. iii) The District Magistrate is directed to constitute a committee comprising of reputed Doctors and administrative officers for ensuring the running of hospital and allied services till finalization and establishment of Multi Speciality Hospital as already decided by the State. iv) The District Magistrate shall take into consideration the welfare of the employees of the erstwhile society in respect of their claims against the society and shall also consider either employing/absorbing, continuing them in running of Hospital administration in the light of directions given above. v) The District Magistrate shall consider the issue of occupation of premises by the employees of the erstwhile society and shall also consider relocating them to an alternative property elsewhere. vi) The District Magistrate is authorised to use such other measures as may be required to execute the directions given herein above. 30. It is clarified that the petitioners no 3 and petitioner no 4 of Writ-C No. 14759 of 2021 will be at liberty to approach the Principal Court of original civil jurisdiction in accordance with law, if so advised, the other Petitioners in the said petition shall also be at liberty to avail their remedies before Civil Court in accordance with law if so advised. 31. 31. The writ petition being Writ-C No. 14759 of 2021 is dismissed and Writ-A No. 13256 of 2021 is disposed off in terms of the order passed above. 32. In view of the order passed above, Writ-C No. 17749 of 2019 and Writ-C No. 17779 of 2019 are rendered infructuous as pleaded in paragraph no. 40 of Writ Petition No. 14759 of 2021 and as I have held that all the rights can be agitated only before the principal Court of original civil jurisdiction, however, no orders are being passed in the said two cases as I have not heard the learned counsels in the said cases. The said two petitions shall be placed before the appropriate court.