Allowed

Anjuman Yateemkhana Islamia and 2 Others v. State of U.P. and 4 Others

Allahabad HC18 May 2018WRIC/17177/2018

Case brief

AI extract

What is this about?

The court quashed an order discarding elections held by an outgoing Committee of Management after its term expired. It held that the Registrar's power to hold elections is directory, not mandatory, unless a meeting was first convened by him.

What did the court decide?

Impugned order quashed; matter remitted for fresh consideration with Registrar to decide complaints after due notice.

Anjuman Yateemkhana Islamia and 2 Others Vs State… — Writ and Judicial Review | Allahabad HC (2018)

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Court No. - 19

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Case :- WRIT - C No. - 17177 of 2018 Petitioner :- Anjuman Yateemkhana Islamia And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rohan Gupta Counsel for Respondent :- C.S.C.,Asha Parihar,Pradeep Chandra,Pratik Chandra,Sushil Kumar Rao,A/P0854

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Hon'ble Manoj Kumar Gupta,J.

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The instant writ petition is directed against the order dated 20.4.2018 passed by Deputy Registrar, Firm, Societies and Chits, Kanpur Region, Kanpur discarding election dated 8.4.2018 in which petitioner no.2 was elected as General Secretary of Anjuman Yateemkhana Islamia, a society registered under the Societies Registration Act, 1860. The election dated 8.4.2018 has been discarded on the sole ground that last election was held on 25.1.2015 and the term of Committee of Management being three years, the election was held after the term of the Committee had expired. The Deputy Registrar has proceeded to invoke power under Section 25 (2) of the Act and has directed the parties to submit list of valid members of the General Body to enable him to finalise the electoral college and hold the election.

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Sri Rohan Gupta, learned counsel for the petitioners submitted that the impugned order is wholly illegal, inasmuch as there is no bar under the bye-laws of the society for the outgoing Committee of Management whose term has expired to hold the elections. He submitted that by the time elections were held, the Deputy Registrar had not convened any meeting for holding election in exercise of power under Section 25 (2) of

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the Act, consequently, there was no fetter on the power of the outgoing Committee to hold the elections. In this regard, he has placed reliance on a Division Bench judgement of this Court in Vinod Kumar Varshney Vs. State of U.P. and others (2017) 7 ADJ 311 and a Full Bench judgement in Committee of Management, Dadar Ashram Trust Society and others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi and others 2017 (1) ADJ (FB) . He further submitted that in fact, there were certain complaints which were filed by the parties in regard to the manner in which the affairs of the society are being conducted, as also in respect of alleged removal of respondent no.3 from the post of General Secretary and resignation of Abdul Mannan from the post of President, but instead of deciding the complaints, the Deputy Registrar has proceeded to declare the elections as invalid.

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In Vinod Kumar Varshney (supra) , a Division Bench of this Court has held that under Section 25 (2) the Registrar is invested with the power to call a meeting for holding an election if he is satisfied that the election has not been held within the time prescribed in the rules of the society, but where such a meeting has not been convened, the outgoing Committee can still convene a meeting and hold election. The relevant observations made in this regard in paragraphs 17, 18 and 19 are extracted below:-

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"17. Having given our thoughtful consideration in the matter and upon considering the language of Section 25(2) and 25(3) of the Act and upon a conjoint reading of Section 25(2) and 25(3) of the Act, it is apparently clear that the

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Registrar has the power and jurisdiction to call a meeting for the purpose of holding an election if he is satisfied that the election has not been held within the time specified in the rules of the society. However, Section 25(3) of the Act recognises that a meeting for the purpose of holding an election can be convened by any other authority or by any other person claiming to be an office bearer of the society, meaning thereby that if the term of the Committee of Management expires, the Committee of Management can still convene a meeting and hold an election unless an order is passed by the Registrar under Section 25(2) of the Act for holding an election.

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We are of the view that upon a conjoint reading of Section 25(2) and Section 25(3) of the Act, the power of the Committee of Management to convene a meeting for the purpose of holding an election gets eclipsed only when the Registrar has assumed jurisdiction and has taken steps to convene a meeting under Section 25(2) of the Act. We make it further clear that so long as an order for convening a meeting and for holding an election is not passed by the Registrar under Section 25(2) of the Act, the power to convene a meeting for the purpose of holding an election continues with the Committee of Management, even after the expiry of its terms unless it is specifically prohibited in the Rules of that society. In this regard, our view is fortified by a decision of a Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society and others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi and others, 2017 (1) ADJ 1, wherein the Full Bench held:-

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"As would be evident from a reading of sub-section (3), the power and jurisdiction of any other authority or person to call a meeting for the purpose of elections stands eclipsed only in a situation where a meeting has already been called by the Registrar under sub-section (2). In fact sub-section (3) recognises that a meeting for the purposes of elections may in fact be convened by any other authority or by any other person. The power of that other authority or person to convene such a meeting stands taken away only if the Registrar has assumed jurisdiction and steps under sub-section (2) to convene a meeting."

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In the light of the aforesaid, the answer to question no.1 is, that the Committee of Management even after the expiry of its term can convene a meeting for the

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purpose of holding an election unless it is specifically barred under the Rules of its society. Such right continues till such time the Registrar passes an order under Section 25(2) of the Act after which no further meeting could be convened thereafter by the Committee of Management in view of sub-Section (3) of Section 25 of the Act ."

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(emphasis supplied)

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The Full Bench in Committee of Management, Dadar Ashram

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Trust Society (supra) , was considering the question as to whether there can be a mandamus commanding any other authority, apart from the Registrar, to hold election of office bearers of a registered society, the term of whose managing committee had expired. While answering the said question, the Full Bench considered the provisions of Section 25 in great detail and thereafter, held that the power vested in the Registrar under sub-section (2) is directory and permissive and not mandatory. It has been held that the language in which sub-section (2) is couched, does not warrant an interpretation where it could be held that the Registrar should, as of necessity, convene a meeting of the General Body of the society immediately upon the term of the erstwhile Committee coming to an end. The law laid down in this regard by the Full Bench in paragraphs 17 and 18 is extracted below:-

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"17. In our considered view, the conclusion reached by the Division Bench is based upon the assumption that Section 25(2) is firstly of a mandatory character, and secondly that the same confers exclusive jurisdiction and authority on the Registrar alone. Here it becomes pertinent to note that the powers exercisable by the Registrar in terms of sub-section (2) by the very nature of the power conferred is apparently directory in nature. The power conferred on the Registrar

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becomes exercisable upon him being satisfied that an election of office bearers of a society has not been held within the time specified under its rules or bye laws. The provision then prescribes that upon such satisfaction being arrived at, the Registrar "may" call a meeting of the general body of such society for election of its office bearers. It becomes further relevant to note that all further actions that the Registrar takes from this point onwards has to be in accordance with the provisions of the rules of the society relating to meetings and elections. The very language of the provisions indicates that the power vested in the Registrar under sub-section (2) is directory and permissive. Sub-section (2) in our considered opinion, is neither couched in mandatory terms nor is it liable to be interpreted in a manner where we may be compelled to hold that the Registrar must necessarily convene a meeting of the general body of the society immediately upon the term of the erstwhile committee having come to an end or fresh elections having not been held. This we so hold in light of the fact that there may be varied circumstances in which elections of office bearers of a society may not come to be held within the time specified under its rules. It cannot be said that in all situations where elections of office bearers of the society have not been held, the same is attributable to a deliberate default on the part of the existing office bearers. A stark example is the present case itself where on account of the appointment of the Authorised Controller as far back as in 1988, the elected office bearers stood removed and were unable to hold any elections whatsoever. These and other similar situations may result in elections of office bearers not being held within the time specified under the rules of the society. It is in this sense that we have found the powers of the Registrar to be directory and permissive. On a thoughtful consideration of the nature of the power conferred, the circumstances in which it is liable to be exercised, it is apparent that sub section (2) confers a discretionary power upon the Registrar to convene a meeting of the general body of the society. Our conclusion on this aspect is further buttressed by the use of the word "may" in sub-section (2) insofar as the power of the Registrar to convene a meeting of the general body is concerned.

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18. The second assumption on which the conclusion of the Division Bench appears to rest is the understanding that the Registrar was conferred with exclusive "jurisdiction" and authority to convene a meeting of the general body.

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This assumption in our considered view is clearly misplaced when one reads sub-section (3) of Section 25 which is in the following terms:

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"Where a meeting is called by the Registrar under subsection (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the society."

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As would be evident from a reading of sub-section (3), the power and jurisdiction of any other authority or person to call a meeting for the purpose of elections stands eclipsed only in a situation where a meeting has already been called by the Registrar under sub-section (2). In fact sub-section (3) recognises that a meeting for the purposes of elections may in fact be convened by any other authority or by any other person. The power of that other authority or person to convene such a meeting stands taken away only if the Registrar has assumed jurisdiction and taken steps under sub-section (2) to convene a meeting.”

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It is not in dispute that under the bye-laws there is no provision which forbids the outgoing Committee from holding the election after expiry of its term. The law laid down by the Division Bench in Vinod Kumar Varshney (supra) and the Full Bench in Committee of Management, Dadar Ashram Trust Society (supra) unequivocally holds that in such circumstances there was no fetter on the power of the Committee of Management to hold fresh elections. Having regard to the same, the irresistible conclusion is that the impugned order, in so far as it discards election dated 8.4.2018 solely on the ground that it was held by the Committee whose term had expired, cannot be sustained.

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Sri Pratik Chandra, learned counsel appearing on behalf of respondent no.3 and Sri O.P. Singh, learned counsel appearing on behalf of respondent no.4 submitted that they do not intend to file any counter affidavit and instead of keeping the matter pending, the same be

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relegated to the Deputy Registrar, for taking a fresh decision.

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Accordingly, the impugned order dated 20.4.2018 is quashed. The matter is remitted back to the second respondent for taking a fresh decision in the light of observations made above. Counsel for the parties state that the parties would appear before the Deputy Registrar on 4.6.2018. The Deputy Registrar shall thereafter fix a date keeping in mind the convenience of the parties and shall proceed to decide the complaints in accordance with law, after due notice and opportunity of hearing to all concerned.

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The writ petition stands allowed to the extent indicated above. No order as to costs.

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(Manoj Kumar Gupta, J)

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Order Date :- 18.5.2018 SL

Anjuman Yateemkhana Islamia and 2 Others v. State of U.P. and 4 Others

Case brief

What is this about?

What did the court decide?

Anjuman Yateemkhana Islamia and 2 Others v. State of U.P. and 4 Others

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