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2022 DIGILAW 313 (ALL)

Sarfaraj Ahmad v. State of U. P.

2022-03-05

ABDUL MOIN

body2022
JUDGMENT : ABDUL MOIN, J. 1. Heard Sri. Sharad Pathak, learned counsel for the petitioners, learned Additional Chief Standing counsel appearing for the State/respondents and Sri. S.K. Kalia, learned Senior Advocate assisted by Sri. Yogendra Kumar Mishra, learned counsel appearing for the 4. 2. Instant writ petition has been filed praying for the following reliefs: “(i) Issue a writ, order or direction in the nature of certiorari quashing the of impugned order dated 11.02.2022, passed by opposite party no. 2 contained in Annexure No. 1 to the writ petition. (ii) Issue a writ, order or direction in the nature of Mandamus commanding the opposite party no. 2 to finalize the list of members of the General Body of the society in view of the parameters provided in Section 4-B of the Societies Registration Act, 1860 and include name of petitioners in the final list of members of the society.” 3. The case set forth by the petitioners is that the last elections of the society were held on 18.06.2019 of which the result was declared on 19.06.2019. Copy of the result has been filed as annexure 4 to the writ petition. One Sri. Imtiyaz Ahmad was elected as Secretary. 4. Thereafter, it was decided to induct new members and thus a notice was issued both in the newspaper as well as pasted on the notice board of the society inviting applications. It is contended that various persons had applied for membership, including the 28 petitioners, in September, 2019. As per the bye-laws, the petitioners had deposited a sum of Rs. 1100/- each for the membership fee (the membership as per bye-laws being Rs. 500/-). All the applications for membership were considered in the general body meeting held on 28.09.2019, a copy of which is annexure 13 to the writ petition. In the meeting held on 17.11.2019, the society approved the induction of the petitioenrs as members. Considering Clause 21 of the bye-laws and the secretary being duly authorized as per bye-laws to carry on all necessary correspondence, Sri. Imtiyaz Ahmad the Secretary informed the Registrar about the membership in November, 2019. Certain objections/complaints were filed by one Sri. Ziya Kauser and Hafiz Anwar along with other complaints and the Registrar issued notices to the society to justify the new membership. Imtiyaz Ahmad the Secretary informed the Registrar about the membership in November, 2019. Certain objections/complaints were filed by one Sri. Ziya Kauser and Hafiz Anwar along with other complaints and the Registrar issued notices to the society to justify the new membership. It is claimed that the even the petitioners filed their objections/representation before the Registrar vide representation dated 19.01.2022, a copy of which is annexure 30 to the petition. The Registrar thereafter proceeded to hear the matter and by means of the impugned order dated 11.02.2022, a copy of which is annexure 1 to the writ petition, held that the membership of the 28 petitioners as members is not established and has thus not found the 28 petitioners to be validly inducted members of the society. He has further directed that the elections be held in the society from the list of 28 members for which objections have been invited for the purpose of correction of any clerical errors in the list of such members. 5. Being aggrieved, the present petition has been filed. 6. Raising a challenge to the impugned order, learned counsel for the petitioners has primarily indicated three grounds namely (a) that the Registrar has patently exceeded his jurisdiction, as provided under Section 4B of the Societies Registration Act, 1860 (hereinafter referred to as “Act 1860”) in examining more documents than prescribed inasmuch as the Registrar could only examine the correctness of the list of members on the parameters and on the basis of documents as indicated in Section 4B of the Act, 1860 (b) no opportunity of hearing had been given to the petitioners while declaring their membership as invalid and (c) the decision making process is bad in the eyes of law. No other ground has been urged or argued. 7. Elaborating the same, Sri. No other ground has been urged or argued. 7. Elaborating the same, Sri. Sharad Pathak, learned counsel for the petitioners argues that Section 4B of the Act, 1860 provides that the Registrar has to examine the correctness of the list of members of general body of such society on the basis of the register of members of the general body, the minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society only while in the present case the respondent authority has examined various other documents which do not even come within the ambit of Section 4B of the Act, 1860 and thus has exceeded his jurisdiction and authority while passing the impugned order and arriving at a finding that the membership of the petitioners is improper. 8. So far as no opportunity of hearing having been granted to the petitioners, reliance has been placed on the judgment of this Court in the case of Sarvendra Veer Vikram Singh and Others vs. State of U.P. and Others, 2017 (8) ADJ 671 and the judgment of this Court in the case of Shiv Narain Agarwal and Others vs. State of U.P. and Others passed in Misc. Single No. 16656 of 2021 decided on 06.08.2021, copies of which have been filed as annexure 35 and 36 to the petition to contend that the order impugned would be vitiated for non compliance with principles of natural justice as no opportunity of hearing had been given to the petitioners prior to holding their membership to be invalid. 9. On the other hand, learned Additional Chief Standing counsel as well as Sri. S.K. Kalia, learned Senior Advocate assisted by Sri. Yogendra Kumar Mishra, learned counsel appearing for the respondent no. 4 argue that once the dispute relates to membership of the society, as such, such dispute can be adjudicated before the Civil Court and not before this Court while exercising writ jurisdiction. In this regard, reliance has been filed on a Division Bench judgment in the case of Shitla Prasad Tiwari and Others vs. State of U.P. and Others, 2018 (36) LCD 93 and a judgment of this Court in the case of Babita Verma, Manager Kisan Ucchtar and Others vs. State of U.P. and Others passed in Writ (C) No. 856 of 2022 decided on 14.02.2022. 10. Sri. 10. Sri. Kalia, learned Senior Advocate also argues that a perusal of the impugned order would indicate that various disputed questions are involved and it would be the civil Court which can go into the said disputed questions by asking the parties concerned to lead evidence and this Court while exercising jurisdiction under Article 226 of Constitution of India may not go into such disputed questions of fact and thus prays that the present petition be dismissed. 11. So far as non grant of opportunity of hearing to the petitioners is concerned, it is argued that grant of opportunity of hearing to the members would not be required inasmuch as in the judgment of Sarvendra Veer Vikram Singh (supra) the list of members that was sent by the society had been admitted by the Deputy Registrar while passing a specific order but in the instant case, the list of members was never admitted rather from day one, the objections were filed against the list of members which has finally culminated in the passing of the impugned order and thus, the said judgment would not be applicable in the facts of the instant case more particularly when no vested right has crystallized to the petitioners to claim membership as such, there is no requirement of any opportunity of hearing rather an opportunity has duly been given to the society of which the petitioners claim to be the members. So far as the judgment in the case of Shiv Narain Agarwal (supra) is concerned, it is argued that in the judgment of Shiv Narain Agarwal (supra) the earlier judgment of Sarvendra Veer Vikram Singh (supra) has been followed without noticing the distinguishing factor and thus the said judgment would also not be applicable in the facts of the instant case. 12. Heard learned counsel appearing for the contesting parties and perused the records. 13. At the very outset, the Court gave an option to Sri. Sharad Pathak, learned counsel appearing for the petitioners of approaching the Civil Court keeping in view the law laid down by the Division Bench of this Court in the case of Shitla Prasad Tiwari (supra) and Babita Verma (supra). To that, Sri. Sharad Pathak, learned counsel appearing for the petitioners stated that the petition may be decided on merits even though when it was indicated to Sri. To that, Sri. Sharad Pathak, learned counsel appearing for the petitioners stated that the petition may be decided on merits even though when it was indicated to Sri. Sharad Pathak, learned counsel appearing for the petitioner that a decision on merits may prejudice the case before the Civil Court also. However, Sri. Sharad Pathak, learned counsel appearing for the petitioner has insisted upon this Court passing an order on merits of the case and accordingly, the Court proceeds to decide the case on merits. 14. From the arguments as raised by the learned counsel appearing for the contesting parties and perusal of records it is apparent that the 28 petitioners were inducted as members by the society concerned. Various objections were raised by various persons to the induction of the petitioners as members. It is claimed that that while inducting the petitioners as members, they have paid the membership fee for which a receipt had been issued and the amount of membership had also been deposited in the bank account of the society and all the petitioners were duly approved and inducted as members in the meeting of the society convened on 07.11.2019. The list of the members was than submitted in the office of the respondent no. 2 for registration but instead of it being registered/admitted, the objections were invited and at the same time various objections were also received and thereafter the impugned order was passed whereby the petitioners were not found to be validly inducted members. 15. The grounds raised in the petition are primarily (a) that the Registrar has patently exceeded his jurisdiction as provided under Section 4B of the Societies Registration Act, 1860 (hereinafter referred to as “Act 1860”) in examining more documents than prescribed inasmuch as the Registrar could only examine the correctness of the list of members on the parameters as indicated in Section 4B of the Act, 1860 (b) no opportunity of hearing had been given to the petitioners while declaring their membership as invalid and (c) the decision making process is bad in the eyes of law. 16. 16. So far as ground (a) is concerned, though Section 4B of the Act, 1860 provides for the Registrar to examine the correctness of the list of members on the basis of the register of members, minutes book, cash book, receipt book of membership fee and bank pass book of the society yet while making the inquiry under Section 4B of the Act, 1860, the Registrar is not supposed to act as a post office rather is supposed to act administratively by applying his mind on the facts and documents placed before him. It is not that the inquiry made by the Registrar is final inasmuch as the aggrieved party can always take up the matter before a competent Court. 17. This aspect of the matter has been considered by a Division Bench of this Court in the case of Syed Akhtar Hasan Rizvi vs. State of U.P. and Others in Special Appeal No. 261 and 263 of 2015 decided on 07.01.2016. Again, a Division Bench of this Court in the case of T.P. Singh vs. Registrar/Assistant Registrar, Firms Societies and Chits, Teliyarganj and Others, (2019) 1 UPLBEC 209 considering the aforesaid judgment of Syed Akhtar Hasan Rizvi (supra) and also while placing reliance on the judgment of Apex Court in the case of A.P. Aboobaker Musaliar vs. District Registrar (G), Kozhikode and Others, (2004) 11 SCC 247 has held as under: 36. Construing sub-sections (1) and (2) of Section 4-B of Act, 1860 harmoniously, Court clearly said that examination of correctness of list if confined only at the time of registration/renewal, it will exclude subsequent change in the membership till next renewal and that will defeat the purpose that bogus membership dispute should not stake to obstruct simple functioning of Society and induct bogus claim. Therefore, if any change in membership takes place within the period when next renewal is due, such change is also to be informed to Registrar and he is empowered to look into the correctness of such change. We may notice Paras 32 and 33 of the judgment of Division Bench making observations for harmonious interpretation of entire Section 4-B of Act, 1860 as under: “32. We may notice Paras 32 and 33 of the judgment of Division Bench making observations for harmonious interpretation of entire Section 4-B of Act, 1860 as under: “32. If the aforesaid interpretation is not given in such a harmonious manner, then the list of members filed at the time of registration/renewal of the Society will be there upto the next renewal, but if any change in the membership takes place within five years as the renewal of the Society falls due in five years, then whether that change is required to be informed to the Registrar or not. The Registrar will be clueless and will be lacking information, if in the meantime, various members in the General Body are inducted by the Society, though inducted in accordance with the provisions contained in the bye-laws. The Registrar can place as check on illegal induction in this manner. 33. The rider of one month imposed in sub-section (2) itself is indicative of the fact that if there is any change at any point of time, then the same should be informed to the Registrar within a period of one month and this can be the only interpretation of sub-section (1) and (2) of Section 4-B of the Act, keeping in view the statement of objects and reasons, which states that in order to curve the menace of fraudulent list being produced before the Registrar by unscrupulous persons, a check was required to be placed. Now the check, which is required to be placed, is to be placed in a continuous manner and if it is in piece-meal, then it is to be of no avail and the intention of the legislature will stand defeated in regard to validity of the list of members of the General Body being submitted before the Registrar at the time of registration/renewal. The mischief is required to be checked and if it is checked, then under sub-section (2) of Section 4-B of the Act, the Society must inform the Registrar regarding the change in the membership after the registration/renewal takes place upto the period of next renewal. The legislature does not presume vacuum and if there is any causus omissus, then the same can be supplied by the Court.” 37. The legislature does not presume vacuum and if there is any causus omissus, then the same can be supplied by the Court.” 37. Court also observed that in making inquiry under Section 4-B of Act, 1860, Registrar is not a Post Office but supposed to act administratively by applying his mind on the facts and documents placed before him. Division Bench also referred to Supreme Court judgment in A.P. Aboobaker Musaliar vs. District Registrar (G), Kozhikode and Others, (2004) 11 SCC 247 and observed that when more than one returns are filed before Registrar, it may not hold an elaborate enquiry but bound to satisfy himself prima facie as to which return is to be accepted. Inquiry made by Registrar is not final and aggrieved party can always take up the matter before a Competent Court. Court also held that term “membership” has been defined under Act, 1860 and it indicates that a member of a Society shall be a person who, having been admitted therein according to rules and regulations, paid subscription, signed the roll or list of members and has not resigned in accordance with such rules and regulations. Hence, upholding action taken by Deputy Registrar, Court in Para 55 of judgment observed: “The original records were deposited by the appellant. The Deputy Registrar has undertaken exercise to verify the membership on the basis of agenda, proceedings, membership register and passbook of the bank account etc. and found that there was nothing illegal in the induction of those members and proceeded to accept the membership under Section 4-B of the Act on 17.10.2014.” 38. This judgment makes it clear that under Section 4-B of Act, 1860, 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, Registrar may examine agenda, minutes of meeting and other relevant steps taken by Society. To this extent, an inquiry can be made by Registrar to find out whether list of members or change in list of members is correct or not. (Emphasis added) 18. For this purpose, Registrar may examine agenda, minutes of meeting and other relevant steps taken by Society. To this extent, an inquiry can be made by Registrar to find out whether list of members or change in list of members is correct or not. (Emphasis added) 18. Accordingly, considering the Division Bench judgment of this Court in the case of T.P. Singh (supra) it is apparent that the Deputy Registrar is supposed to act administratively by applying his mind on the facts and documents placed before him and to that extent an inquiry can be made by the Registrar to find out whether list of members or change in the list of members is correct or not. Perusal of Section 4B of the Act, 1860 would indicate that the documents which are required to be examined by the Registrar have been indicated but the legislature in its wisdom has not used the word “only” so as to preclude the Registrar from going into other documents that may be relevant for arriving at a finding by him pertaining to the correctness of the list. Thus, in case the argument of the learned counsel for the petitioners is accepted the same would tantamount to prescribing something by the legislature in Section 4B of the Act, 1860 which is not provided and thus there would not be any bar in the Registrar going through other documents also apart from the documents as mentioned in Section 4B of the Act, 1860 in order to examine the correctness of the list of members. Consequently, this Court does not find any infirmity in the impugned order passed by the Registrar in having gone beyond the documents as contemplated under Section 4B of the Act, 1860. 19. So far as the ground of non opportunity of hearing to the petitioners is concerned, from a perusal of records it is apparent that the list of members containing the name of petitioners that had been submitted by the society was never admitted or accepted by the competent authority rather objections were filed against the same and at the same time objections had also been invited by the competent authority. Accordingly, once the list of members was never accepted by the Registrar, as such it cannot be said that the petitioners acquired any vested right for being given an opportunity of hearing. Accordingly, once the list of members was never accepted by the Registrar, as such it cannot be said that the petitioners acquired any vested right for being given an opportunity of hearing. The society, of which the petitioners claims themselves to be a members, was duly represented and had also been heard by the competent authority prior to passing the impugned order. Thus, the said ground is rejected. 20. So far as the judgment of this Court in the case of Sarvendra Veer Vikram Singh (supra) is concerned, suffice to say that in the said judgment the Court had noted in paragraph 35 that the list of members was admitted by the Deputy Registrar by passing an order dated 20.12.2016 and the list was not merely presented. Admittedly, in this case, the list of members was only presented and never admitted and thus it was in those circumstances that the Court held that an opportunity of hearing was required to be given to the members. As such the said judgment would not be applicable in the facts of the present case. 21. So far as the judgment in the case of Shiv Narain Agarwal (supra) is concerned, the judgment of Sarvendra Veer Vikram Singh (supra) has been followed without noticing the distinguishing factors as are present in the present case and thus the judgment of Shiv Narain Agarwal (supra) would also not be applicable in the facts of the present case. 22. So far as the ground of decision making process being erroneous on account of the aforesaid two grounds, suffice to say that this Court does not find the grounds (a) and (b) are attracted in the facts of the 10 instant case and, as such no error is found in the decision making process of the competent authority which has led to the passing of the impugned order. 23. Considering the aforesaid, this Court does not find any illegality or infirmity with the impugned order dated 11.02.2022, a copy of which is annexure 1 to the writ petition. Accordingly the writ petition is dismissed.