Rashmi Devi and 19 Others v. State of U.P. and 4 Others

Court No. - 10 Case :- WRIT - C No. - 14951 of 2023 Petitioner :- Rashmi Devi And 19 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Saurabh Sachan,Sankalp Narain,Sr. Advocate Counsel for Respondent :- C.S.C.,Namit Srivastava Hon'ble Kshitij Shailendra,J.

¶1Heard Shri Sankalp Narain alongwith Shri Saurabh Sachan, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Shri Ashok Khare, learned Senior Counsel assisted by Shri Namit Srivastava, learned counsel for respondent no.5.

¶2Two orders have been challenged by means of the present writ petition. By the first order dated 22.03.2022, the Deputy Registrar, Firms, Societies & Chits, Meerut has held that the elections dated 30.04.2021 were hypothetical and not actual and in view of the last elections dated 10.05.2016, the Society has become defunct/time barred and, therefore, he would proceed to issue directions for holding fresh elections after due verification of valid membership under Section 4-B of the Societies Registration Act, 1860 (hereinafter referred to 'the Act, 1860') while exercising powers under Section 25(2) of the Act, 1860. By the second order impugned dated 01.03.2023, the Deputy Registrar has determined the membership observing that only two members remained existent after the death of certain persons and, insofar as others are concerned, after examining the receipts and other documents, their membership could not be established.

¶3By assailing the aforesaid two orders, it has been argued by learned counsel for the petitioners that undisputed elections of the Society were held on 10.05.2016, in which, one Harbhajan Singh was elected as President and Shyam Singh (respondent no.5) was elected as Manager and when Harbhanjan Singh expired on

08.10.2017, his son Dhamdeep Singh (petitioner No.20) became President for the remaining term and when the next elections were held on 30.04.2021, again, petitioner No.20 was elected as President and Shyam Singh as Manager. It is contended that when the documents were placed for approval of list of office-bearers pursuant to the elections dated 30.04.2021, Shyam Singh (respondent no.5) took somersault and challenged the validity of the elections, in which, he himself had been elected as Manager and the grounds contained in certain complaints moved by him are that the election proceedings were fabricated, some were not signed by the respondent no.5, most of the office-bearers shown in the list of members of General Body being Government servants were outside the city of Meerut on the date of elections, quorum of the meeting was incomplete, signatures of authorized persons were fabricated, no copies of the agenda of the meeting was served upon the complainants and other members, nor was it affixed on the Notice Board, no meeting was held in the premises on 15.01.2021. Certain other allegations of causing financial embezzlement were levelled against the petitioners.

¶4The first order impugned has been passed by the Deputy Registrar mainly on the ground that despite opportunity provided to the petitioner, neither agenda register, nor proceedings registered, nor any evidence with regard to membership, nor the documents establishing presence of members who were government servants and allegedly outside the city of Meerut were produced. The Deputy Registrar further observed that since, the objections with regard to valid membership were also received, there is no occasion to refer the matter to the Prescribed Authority under Section 25(1) of the Act, 1860. He, therefore, discarded the elections by recording the following observations:- "अध्य्ቌ का यह कथन किक व्ቧ 2016 में इसी सूची के आधार पर्ቚ बन्ध सकिमति का चुनाव कराया गया था उसके बाद नये सदस्य नहीं बनाये गये है इस सम्बन्ध में स्प्ቖ करना है किक व्ቧ 2016 के चुनाव में कायालय में आपቈኌ+ ्ቚा्቎ नहीं हुई थी। व्ቧ 2021 के चुनाव पर सदस्यों की वैधा का सम्बन्ध में आपቈኌ+ ्ቚा्቎ नहीं हुई थी। सदस्यों की वैधा का किनधारण सोसाईटीज रजिजस्ट्रेशन एक्ट 1860 की धारा-4(ख) के अन्ग किकया जाना है। धारा-4(ख) के अन्ग सदस्या के किनधारण का अतिधकार अधोहस्ा्ቌरी में किनकिह है। इसቈኌलए ्ቚकरण सोसाईटीज रजिजस्ट्रेशन एक्ट 1860 की धारा-25(1) के अन्ग किवकिह ्ቚातिधकारी को सन्दቝኌ< किकये जाने का औतिचत्य नहीं है। अध्य्ቌ को पया्቎ अवसर ्ቚदान करने के प्ቐा <ी वे किनवाचन सम्बन्धी ठोस साቌኚय व सदस्या सम्बन्धी अभि<लेख ्ቚस्ु करने में असफल रहे, जिजससे स्प्ቖ है किक किदनांक

30.4.2021 को ्ቚबन्ध सकिमति का दशाया गया किनवाचन वास्किवक न होकर काल्पकिनक है। ्ቚबन्ध सकिमति का किपछला किनवाचन किदनांक 10.5.2016 में किकया था। ्ቚबन्ध सकिमति का कायकाल 05 व्ቧ है। समय से किनवाचन न होने के कारण ्ቚबन्ध सकिमति कालाी हो चुकी है। अध्य्ቌ-्ቚबन्धक ने एक दूसरे पर किव+ीय अकिनयकिमाओं के आरोप लगाये हैं। किव+ीय अकिनयकिमाओं की जांच सोसाइटीज रजिजस्ट्रेशन एक्ट 1860 की धारा-24 के अन्ग पृथक से की जायेगी।"

¶5It appears that after this order was passed, the contesting parties again appeared before the Deputy Registrar and produced documents establishing validity to the elections held and also submitted proof of membership. The second order impugned decides the membership either-way.

¶6Learned counsel for the petitioners while addressing the Court on the jurisdiction of Deputy Registrar to invalidate any election has placed reliance upon the following Authorities:-

(a). Katar Singh Baliyan v. State of U.P. And Others reported in 2019 (5) ADJ 492 (DB);

(b). Order dated 18.12.2013 passed in Special Appeal Defective No.1286 of 2013 (C/M, Anjuman Kherul Almin and Others v. State of U.P. And Others);

(c). Order dated 16.08.2023 passed in Writ C No.13576 of 2023 (The C/M Kshetriya Shri Gandhi Ashram Garh Road And Another v. State of U.P. And 3 Others);

(d). Order dated 16.03.2018 passed in Writ C No.1069 of 2018 (Sri Vidur Sewa Ashram and Others v. State of U.P. and Others).

¶7By relying upon the aforesaid Authorities, it has been argued that the power to set aside elections exclusively vests in the Prescribed Authority under Section 25(1) of the Act, 1860 as well as its proviso and the dispute which was decided by the Deputy Registrar with regard to the membership is also an issue which can be incidentally decided by the Prescribed Authority. Learned counsel has emphasized on the words "hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of any office-bearer of such Society" with further emphasis on the proviso which is in relation to recording of satisfaction by the Prescribed Authority while setting aside the elections.

¶8It is, therefore, contented that once the basic order is without jurisdiction, the exercise undertaken by the Deputy Registrar under the second order impugned being consequential to the earlier order also stands nullified.

¶9On the other hand, Shri Ashok Khare, learned Senior Counsel has vehemently opposed the writ petition and has argued that the Deputy Registrar cannot be treated as merely a post-office to receive whatever is produced before him and to keep mum in the matter and, in the present case, once, specific complaints were received by him, he proceeded to examine the validity of the said proceedings and found that the membership was seriously disputed and, therefore, he rightly proceeded to carry out an exercise under Section 4-B of the Act, 1860. It is further argued that under Section 25(2) of the Act, 1860, where the Registrar is satisfied that any elections of office-bearers of the Society has not been held within the time specified in the Rules of the Society, he shall proceed to hold elections under Section 25(2) of the Act, 1860. In the present case, once the President failed to produce any documentary evidence before the Deputy Registrar with regard to elections dated 30.04.2021, despite order, the Deputy Registrar has rightly proceeded to go ahead step-by-step and first order impugned says that the validity of the membership would be examined under Section 4-B of the Act, 1860 and, then, second order impugned also speaks of another step i.e. determination of valid Electoral College and the third step of actual holding of elections under Section 25(2) of the Act, 1860 is yet to be taken.

¶10Shri Khare further submits that one of the members namely Mamchand being aggrieved by the second order impugned preferred an appeal before the Commissioner of the Division who passed an interim order against which, the respondent no.5 filed a Writ C No.13493 of 2023 (Shyam Singh v. State of U.P. And 5 Others) which was disposed off by setting aside the interim order dated 17.03.2023 and the Appellate Authority was directed to re-hear the matter at the admission stage after issuing notice to Shyam Singh. Shri Khare has referred to an order dated 09.06.2023 passed by the Commissioner pursuant to the order of the Writ Court dated

21.04.2023 and the operative portion of the said order reads as follows:- "उपरो्ሹ किववेचना अनुसार मा० उ्ሴ न्यायालय ्ቛारा रिरट यातिचका सं०-14951/2023 में अंतिम आदेश पारिर करने क्ቚ्቞ ग अपील की कायवाही समा्቎ की जाी हैं। ्ቚकरण में रिरट यातिचका सं०-14951/2023 में मा० उ्ሴ न्यायालय ्ቛारा पारिर अंतिम आदेश ्ቚ<ावी होगा। आदेश की सत्याकिप ्ቚति सकिह कायालय तिPप्टी रजिजस्ट्रार, फ्቞स सोसाईटीज एवं तिचटस, मेरठ की प्ቔावली आवश्यक कायवाही हेु ्ቚेकि्ቧ की जाएं। आवश्यक कायवाही उपरान् इस न्यायालय की प्ቔावली अभि<लेखागार में संतिच की जाएं।"

¶11It is, therefore, clear that Commissioner has withheld the proceedings of appeal, awaiting the decision of this Court in the present writ petition.

¶12Having heard learned counsel for the parties, the Court is of the opinion that though the Deputy Registrar cannot be treated as merely as post-office, he has to exercise powers expressly conferred upon him under Section 25(2) of the Act, 1860. There is no dispute about the competence of the Deputy Registrar under Section 4 or 4(1) or 4-B of the Act or its various sub-clauses, however, once the question arises with regard to validity of any elections or doubt or dispute, he cannot record a finding that the elections were hypothetical, not actual or were fabricated or there was some flaw in relation to publication of agenda or participation of members on the date of elections. It appears that, though respondent no.5 himself was elected as Manager in the elections dated 30.04.2021 and the petitioner as President, there is a dispute in between the petitioner and the respondent no.5 with regard to the validity of elections and, ultimately, the membership has been determined either-way under the second order impugned. The second order certainly is an exercise undertaken in consequence to the previous order and, even if, the parties proceeded to address the Deputy Registrar in support of documents relied upon by them after the first order impugned was passed, the validity of first order impugned cannot be ignored and it cannot be said that, merely, because an exercise under Section 4-B of the Act, 1860 has been carried out either-way, setting aside of elections dated 30.04.2021 would become an ignorable issue.

¶13At the same time, it is observed in view of the decisions cited at the Bar, that the Prescribed Authority is quite competent to incidentally determine the question of membership.

¶14In view of the above discussion, the writ petition is being disposed off in the following terms:-

(a). The orders impugned dated 22.03.2022 and consequential order dated 01.03.2023 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut are hereby quashed;

(b). The Deputy Registrar is directed to make a reference to the Prescribed Authority to determine the validity of elections dated

30.04.2021 after hearing both the sides and after providing them full opportunity to produce documents in relation to the said elections;

(c). Such reference shall be made in the month of November 2023 itself, provided a certified copy of this order is produced before the Deputy Registrar before 20.11.2023;

(d). The Prescribed Authority shall decide the reference by the end of February 2024;

(e). The Prescribed Authority shall also incidentally decide the question of valid membership, inasmuch as, the exercise which has been undertaken by the Deputy Registrar is in pursuance of the order which is without jurisdiction. Order Date :- 3.11.2023 Jyotsana High Court of Judicature at Allahabad