High Court
Case Details
Court No. - 29 Case :- SPECIAL APPEAL No. - 210 of 2022 Appellant :- Indu Kumar Dubey And Another Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Shivendu Ojha,Sr. Advocate Counsel for Respondent :- C.S.C.,Sankalp Narain Hon'ble Manoj Misra,J. Hon'ble Vikas Budhwar,J.
Legal Reasoning
We have heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha for the appellants, learned Standing Counsel for Respondents 1, 2 and 3 and Sri G.K. Singh, learned Senior Counsel assisted by Sri Sankalp Narain for the 5th respondent. As the 4th respondent is reported to have died, we need not issue any notice to the heirs, as there is no succession permissible under the bye-laws of the Society.
Decision
This intra-court appeal questions the order dated 11.2.2022 passed by learned Single Judge in Writ-C No. 14936 of 2020, whereby the writ petition of the petitioners has been dismissed by leaving it open to the petitioners to sue for declaration of their rights and challenge the determination of membership of the Society in a duly instituted suit. In a nutshell, the facts giving rise to the instant appeal may be summarized as follows: There is a Society by the name of Sri Laxmi Narayan Sanskrit Pathshala, Singramau, District Jaunpur (for short 'the Society'). The same was registered under the provisions of the Societies Registration Act, 1860 (for short 'the Act') on 16.3.1964. Its registration was renewed from time to time and the last renewal was granted on 10.10.2015. The bye-laws of the Society were submitted for registration by seven founder members namely Kashi Naresh Singh, Gopi Nath, Onkar Nath, Deo Narayan Dwivedi, Ram Naresh, Ram Nayak Dubey and Ram Dayal Sharma. As per Clause 2 (Aa) of the bye-laws of the Society, the membership of the General Body of the Society could be obtained by monthly subscription of 4 annas or annual subscription of 3 rupees. The list of the General Body of the Society submitted in the year 1974 and 1976 bears the name of the appellants as members thereof, whereas the list submitted in the year 1979 does not reflect their names. As it was found that there had been no election of the office bearers of the Society within the time specified by the Rules of the Society, a decision was taken by the Assistant Registrar on 7.4.2018 to hold elections under sub-section (2) of Section 25 of the Act. Pursuant to the said decision, a determination of the General Body / Electoral College for holding the election was made under the order dated 16.2.2019 of the Assistant Registrar Varanasi. Thereunder a 25 member General Body was determined, which included names of even dead persons. This order dated 16.2.2019 was challenged in Writ-C No. 8452 of 2019 by Onkar Nath (one of the founder members). On the petition of Onkar Nath, the order dated 16.2.2019 was quashed and a direction was issued to the Assistant Registrar, Firms Societies and Chits, Azamgarh in following terms: - "A writ of mandamus is issued commanding the Assistant Registrar, Firms, Societies and Chits, Azamgarh to decide the issue of membership strictly in accordance with law and in compliance of Section 4-B of the Societies Registration Act, preferably, within a period of three months from a date of receipt of the certified copy of this order". Pursuant to the aforesaid direction a fresh exercise was undertaken by the Assistant Registrar which culminated in passing the order dated 9.7.2020 impugned in Writ-C No. 14936 of 2020, out of which, the present appeal arises. A perusal of the order dated 9.7.2020 (supra) would reveal that the Assistant Registrar, upon finding that original records regarding membership of the Society were not available and that Onkar Nath was the only surviving undisputed member, held that Onkar Nath is the sole surviving member of the Society. This order dated 9.7.2020 was challenged by the present appellants in Writ-C No. 14936 of 2020 on the ground that from the discussion made in the order dated 9.7.2020, it is clear that the writ petitioners (the appellants herein) were shown as members of the Society in the lists submitted in the year 1974 and 1976 and those lists were available on record therefore, in absence of any evidence with regard to their removal, they ought to be included in the list of members of the Society along with one Hanuman Prasad Tiwari. Consequently, it was the case of writ petitioners, any further enrollment of members in the General Body of the Society ought to have been by a resolution of those founders members who were alive and those whose names find mention in the lists found in the records of the Assistant Registrar. During the pendency of the aforesaid writ petition, as no stay was operating, members were inducted and after determining the General Body under Section 25(2) of the Act, elections were held. Consequently, application was given for amendment of the writ petition to question the same as well. The learned Single Judge after considering the submissions of learned counsel for the parties took the view that since the name of the writ petitioners was not reflected in the list of members of the General Body of the year 1979, the rights of the writ petitioners can appropriately be determined only in a duly instituted suit wherein the validity of determination of membership of the Society and the election of its committee of management could be tested. Consequently, the learned Single Judge dismissed the writ petition while leaving it open to the writ petitioners to institute a suit. Sri R.K. Ojha, learned Senior Counsel representing the writ petitioners (the appellants herein) submitted that once the name of the petitioners was found in the list of members of the General Body in the years 1974 and 1976, and there being no specific provision in the bye-laws of the Society with regard to automatic termination of such membership on mere non- payment of monthly or annual fee as contemplated by Clause 2 (Aa) of the Rules of the Society, the membership would be deemed to continue and therefore, the Assistant Registrar fell in error by not accepting the membership claim of the writ petitioners, moreso, when it was an old dispute and absence of original records could not have defeated their claim. In such circumstances, the Assistant Registrar ought to have accepted the claim of the petitioner and should have included the name of the petitioners in the list. It has been submitted that since the election was a result of an improperly constituted General Body, the consequential election was also liable to be set aside. It was also argued that if the Assistant Registrar could have accepted the membership claim of the 4th respondent (Onkar Nath), whose name did not find mention in the list of members submitted in the year 1979, there was no good reason to exclude the name of the writ petitioners as it would amount to adopting dual standards. It was urged that the learned Single Judge has therefore not been justified in relegating the petitioners to the remedy of a suit. Sri G.K. Singh, learned Senior Counsel representing the 5th respondent, submitted that the lists that find place in the records of Assistant Registrar are claimed to be of the members of the Society in the years 1974, 1976 and 1979. There is no material to show as to on what basis those persons were inducted as members. Therefore, once the name of the petitioners was absent in the list of the year 1979, their claim could have been accepted only if they could have substantiated that they were duly inducted as per the procedure prescribed by the bye-laws of the Society and they continued as such by subscribing to the fee prescribed for gaining/ maintaining such membership. In so far as the membership of Onkar Nath is concerned he was a founder member of the Society and was the person who presented the memorandum of association for registration therefore, there existed no dispute with regard to his membership. The provisions of Clause 2 (Aa) of the Rules of the Society are to be interpreted in a manner as to relate to fresh induction as a member of the Society and not with regard to continuance of the founder member. A founder member therefore, stands on a different footing than the one who is inducted by following the procedure provided in Clause 2 (Aa) of the Rules of the Society. Sri G.K. Singh therefore submits that since there is a serious dispute with regard to the membership of the Society and the names of the writ petitioners were not reflected in the list of members of the Society in the year 1979, to maintain their claim they had to establish that they were members of the Society, duly inducted, as per the procedure prescribed. In absence whereof, the learned Single Judge was justified in leaving it open to the petitioners to institute a suit in respect of declaration of their rights. We have given our thoughtful consideration to the rival submissions and have perused the records carefully. On a perusal of the record we find that there is no dispute between the parties that in the list of the members of the General Body of the Society submitted in the year 1979 the names of the petitioners were conspicuous by their absence. No doubt their names might have found mention in the lists submitted in the year 1974 and 1976, but if their names were not there in the list of 1979, the burden was on the petitioners to substantiate that they continued as members of the Society. In so far as the claim of Onkar Nath is concerned it stands on a higher pedestal as he happens to be the founder member of the Society. There is no dispute that the memorandum of association of the Society was submitted for registration under the signatures of the founder members including Onkar Nath. In such circumstances, prima facie, the claim of Onkar Nath stood on a different footing than that of the writ petitioners, whose names were reflected only in the lists of 1974 and 1976. In these circumstances to effectively determine whether the petitioners were duly inducted as members and they continued as such, in absence of availability of old documents, oral evidence might be required, which could appropriately be taken in a civil suit. We, therefore, find no error in the view taken by the learned Single Judge in relegating the petitioners to the remedy of a civil suit. At this stage, Sri R.K. Ojha, learned Senior Counsel representing the writ petitioners submitted that since the determination of membership was referable to an exercise under Section 25(2) of the Act, the correctness of such determination can also be questioned in a proceeding before the Prescribed Authority under sub-section (1) of Section 25 of the Act. He, therefore, prays that the observations contained in the order of the learned Single Judge should not come in the way of the appellants while exercising their right under the Act. In that context, we deem it appropriate to observe that the observations made in this order as well as the order of the learned Single Judge will not come in the way of the writ petitioners (the appellants herein) from exercising their right, if any, under sub-section (1) of Section 25 of the Act. Subject to above, the appeal is dismissed. Order Date :- 19.9.2022 N.S.Rathour Digitally signed by NIPENDRA SINGH RATHOUR Date: 2022.09.27 09:30:47 IST Reason: Location: High Court of Judicature at Allahabad