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2022 DIGILAW 162 (ALL)

Gajraj Singh v. State Of U. P.

2022-02-08

ASHUTOSH SRIVASTAVA, PRITINKER DIWAKER

body2022
JUDGMENT : This intra Court Appeal under the Rules of the Court has been filed questioning the order of the learned Single Judge dated 20.01.2022 passed in Writ-C No.771 of 2022 (Gajraj Singh vs. State of U.P. and 2 others) whereby the second prayer pressed i.e. to issue Mandamus to the second respondent to consider and decide the objections of the appellant/writ petitioner dated 16.11.2021 and 30.11.2021 before finalizing the list of members of the General Body of the Society in question and holding the elections u/s 25(2) of the Societies Registration Act, 1860, has been declined leaving it open for the appellant/writ petitioner to ventilate his grievances at the appropriate stage before the appropriate forum. 2. The record reveals that the registration of the society in question had been renewed till 10.10.2013. The Sub Registrar, respondent No.2, while considering the rival claims for renewal of the registration of the Society came to the conclusion that no elections of the Committee of Management of the Society had been conducted and there were no valid members of the General Body of the Society amongst whom the elections could be held. The Sub Registrar vide order dated 09.09.2021 required the alive members/office bearers who had signed the list of office bearers at the time of registration to undertake the task of enrolling new members by making publication in the daily news papers. Pursuant thereto, an advertisement is alleged to have been published in the News Daily "Dainik Jagran" New Delhi edition on 21.09.2021. The appellant/writ petitioner is stated to have applied for life membership of the Society. A total of 967 applications so received were found in order and the applicants were inducted as members and the list of such inducted members was forwarded to the office of the Sub Registrar, Meerut. The other applications including the application of the appellant/writ petitioner were found defective and accordingly rejected by the Committee of Management in its special meeting held on 31.10.2021. The rejection has been communicated to the appellant/writ petitioner vide communication dated 15.11.2021 of the respondent No.2 requiring him to take back the 1070 forms submitted. 3. In the aforesaid backdrop the appellant/writ petitioner is stated to have filed the objections dated 16.11.2021 and 30.11.2021 and prayed for decision on the same. 4. The rejection has been communicated to the appellant/writ petitioner vide communication dated 15.11.2021 of the respondent No.2 requiring him to take back the 1070 forms submitted. 3. In the aforesaid backdrop the appellant/writ petitioner is stated to have filed the objections dated 16.11.2021 and 30.11.2021 and prayed for decision on the same. 4. It is vehemently contended by the counsel for the appellant that the prayer for decision on the pending objections was liable to the considered but the learned Single Judge committed grave error in declining the said relief. The appellant/writ petitioner could not be termed a 'stranger' in the circumstances so as to refuse the relief prayed for. It is contended that the respondent No.2, Sub Registrar, was under obligation to decide the objections in exercise of the statutory power conferred upon him u/s 4-B of the Societies Registration Act, 1860. Since the objections were not being decided which the Sub-Registrar was duty bound to decide, a writ of Mandamus lay but the learned Single Judge has proceeded to hold otherwise. Reliance has been placed upon a decision of a coordinate Bench rendered in Writ Petition No. 58426 of 2017 (T.P. Singh vs. Registrar/Asst. Registrar, Firms Societies and Chits, Teliyarganj and others) decided on 10.10.2018 and reported in 2018 (11) ADJ 586 . 5. We have heard learned counsel for the parties and have perused the record. 6. Much emphasis has been laid by learned counsel for the appellant/ writ petitioner upon Section 4-B of Societies Registration Act, 1860, as applicable to the State of U.P. (hereinafter referred to as the 'Act'), inserted by U.P. Act No.23 of 2013 which reads as under:- "4-B (1) At the time of registration/renewal of a society, list of members of General Body of that society shall be filed with the Registrar mentioning the name, father's name, address and occupation of the members. The Registrar shall examine the correctness of the list of members of the General Body of such society on the basis of the register of members of the General Body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society. The Registrar shall examine the correctness of the list of members of the General Body of such society on the basis of the register of members of the General Body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society. (2) If there is any change in the list of members of the General Body of the society referred to in sub-section (1), on account of induction, removal, resignation or death of any member, a modified list of members of General Body, shall be filed with the Registrar, within one month from the date of change. (3) The list of members of the General Body to be filed with the Registrar under this section shall be signed by two office bearers and two executive members of the society." 7. The above quoted Section 4-B was inserted by the legislature realising that there was no provision of filing of list of General Body of Society and a large number of disputes in Societies arose due to non existence of correct list of General Bodies with the Registrar. It was noticed that in several cases an illegal person fraudulently produced before the Registrar incorrect list of General Body of Society and claimed to be member and office bearer of the Society. 8. A list of members of the General Body of the Society has to be filed at the time of registration or renewal of Society. List must mention names, father's name, address and occupation of members. Registrar is under a statutory obligation to examine correctness of list of members of the General Body of such Society on the basis of register of members of General Body and minutes thereof, cash book, receipt book of membership fee and bank pass book of the society. Apparently, it shows that members included in the list, whether included correctly, has to be examined by the Registrar. Apparently, it shows that members included in the list, whether included correctly, has to be examined by the Registrar. If a member is not included in the list, whether such non inclusion also can be examined by Registrar is not very clear from Section 4-B(1) of the Act, but this is made clear by sub-section (2) which says that if there is any change of list of members of General Body of Society referred to in sub-section (1) on account of induction, removal, resignation or death of any member, a modified list of members of General Body shall be filed with Registrar within one month from date of change. 9. A plain reading of the above provision shows that at the time of registration or renewal, a list of members of General body of Society has to be filed before the Registrar. Thereafter whenever there is any change in the said list, same has to be informed to Registrar by submitting a modified list of members of General Body. When such a modified list is submitted to Registrar he is under an obligation to examine the correctness of list of members of General Body as contemplated under sub-section (1), change having arisen on account of induction, removal, resignation or death of any member. 10. The extent of authority of the Registrar to undertake such examination i.e. whether an indepth examination which may be termed as adjudication of dispute or whether a summary enquiry subject to adjudication of dispute by a Court of law came to be examined by a coordinate Bench of this Court in Writ Petition No. 58426 of 2017 (T.P. Singh vs. Registrar/Asst. Registrar, Firm Societies and Chits, Teliyarganj & others) reported in 2018 (11) ADJ 586 . The said decision has been relied upon by the appellant/writ petitioner. This Court examined various judicial precedents on the scope of enquiry by Registrar under Section 4-B of the Act and concluded as under:- (a) The scope of enquiry by Registrar is to see validity of enrollment of members on the basis of documents referred in Section 4-B and to ensure that outsiders may not be able to control the affairs of Society on the basis of fake documents. (b) The Registrar is not supposed to make adjudication of dispute of correctness of membership like a court but whenever a list is submitted or there is any change in the list of members and any objection is raised or otherwise, Registrar has to prima facie satisfy himself that change has been made in accordance with provisions of bye laws and prima facie genuine. For this purpose the Registrar may examine agenda, minutes of meeting and other relevant steps take by the Society. To this extent an enquiry can be made by Registrar to find out whether list of members or change in list of members is correct or not. (c) The Registrar is obliged to examine the question of correctness of alteration or change or modification in the list of members when an objection is taken. Cancellation/termination/removal of membership is a mode of alteration of list of members which can be examined by Registrar. Documents which are supposed to be furnished to Registrar are also specifically mentioned and from those documents whatever facts discern may be seen to find out whether Society in a bona fide manner has followed its own procedure laid down in the bye laws. 11. The claim of the appellant/writ petitioner regarding the membership of the Society in question along with 1070 other applications has been rejected by the Special Meeting of the Society convened on 31.10.2021 for approving/disapproving the induction of new members. The proceedings of the Meeting held on 31.10.2021 which are on record as Annexure -8 reveal that applications for membership were invited between 23.09.2021 upto 01.10.2021. Out of the applications so received a total of 967 applications were scrutinized in terms of the order dated 9.9.2021 of Registrar and found in order in meeting of the Society held on 2.10.2021 whereafter the 967 were inducted as members of the society. The list of members was forwarded to the office of Registrar, Meerut on 6.10.2021. Now, the office of the Registrar vide letter dated 12.10.2021 has intimated to collect 1070 forms received in the office on any working day. The 1070 forms were collected in five bundles, processed and found incomplete and consequently rejected. The findings of the Meeting dated 31.10.2021 is reproduced below:- 12. The appellant/writ petitioner has not challenged the above resolution of the society. He, however, has preferred objections dated 16.11.2021 and 30.11.2021 before the Registrar. The 1070 forms were collected in five bundles, processed and found incomplete and consequently rejected. The findings of the Meeting dated 31.10.2021 is reproduced below:- 12. The appellant/writ petitioner has not challenged the above resolution of the society. He, however, has preferred objections dated 16.11.2021 and 30.11.2021 before the Registrar. By way of the objections the relief of recall of the order dated 15.11.2021 by which the 1070 forms were returned and compliance of order dated 09.09.2021 has been sought. 13. Having examined the extent of the power of the Registrar under Section 4-B of the Act, we find that the list of members has been finalized and the same has been sent to the office of the Registrar on 06.10.2021. The Registrar in order to examine the correctness of the list of members under Section 4-B of the Act is only required to see the inclusion and deletion of the members and to modify the list accordingly. He is not enjoined upon to go into the validity of the list of members already finalized except for deleting some of those members who may have died or ceased to be the members otherwise, which is not the case at hand. The claim of the appellant/writ petitioner that he along with the 1070 applicants have been denied the membership of the Society cannot be gone into summarily and would require appropriate examination after oral and documentary evidences are led by the parties in a Civil Suit. 14. The reliance placed by the appellant/writ petitioner on the decision rendered in Writ Petition No. 58426 of 2017 (supra) is misplaced in as much as in the said case the membership of the petitioner therein was terminated which resulted in change in the list of members of the Society. Since the petitioner therein had been removed from membership of General Body of the Society without following procedure laid down in the bye laws, this Court held that it was within the domain of the Assistant Registrar to consider the objections of the petitioner therein in exercise of powers under Section 4-B of the Act. This is not the case here as the appellant/writ petitioner has not been inducted as a member of the General Body of the Society. This is not the case here as the appellant/writ petitioner has not been inducted as a member of the General Body of the Society. In our opinion the appellant/ writ petitioner is required to establish his rights as a Member of the General Body of the Society before the Civil Court and only thereafter approach the Registrar under Section 4-B of the Act. 15. The learned Single Judge has rightly observed that for issuance of a writ of mandamus pre-existing statutory duty must be shown to exist and failure to discharge such statutory duty must also be shown to exist. That stage has yet not come. 16. Accordingly, no interference is warranted in the impugned decision of the learned Single Judge. The Special Appeal lacks merit and is, accordingly, dismissed.