Remanded

Colonel Tejandra Pal Tyagi v. Sub Divisional Magistrate Ghaziabad and 2 Others

Allahabad HC29 Aug 2018WRIC/48986/2017

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an order by the Sub-Divisional Officer, Ghaziabad, which discarded his election and approved a rival election. The Court set aside the impugned order for considering extraneous factors and remitted the matter to the Prescribed Authority for a reasoned decision on the validity of the petitioner's election.

What did the court decide?

The order dated 28.9.2017 dated 28.9.2017 is set aside and the matter is remitted to the Prescribed Authority to decide afresh.

Colonel Tejandra Pal Tyagi Vs Sub Divisional Magistrate… — Property and Title | Allahabad HC (2018)

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Court No. - 36

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Case :- WRIT - C No. - 48986 of 2017

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Petitioner :- Colonel Tejandra Pal Tyagi Respondent :- Sub Divisional Magistrate, Ghaziabad And 2 Others Counsel for Petitioner :- Binod Kumar Tripathi,Awadhesh Kumar Malviya Counsel for Respondent :- C.S.C.,Om Prakash Mishra

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard Shri G.K. Singh learned Senior Counsel assisted by Shri Awadhesh Kumar Malviya, learned counsel for the petitioner and Ms. Archana Sharma for the respondent no.3.

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The challenge in the present petition is to the order dated 28.9.2017, passed by the Sub-Divisional Officer, Ghaziabad, the Prescribed Authority under Section 25(1) of the Societies Registration Act, 1860 (in short 'The Act 1860)'.

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The petitioner claims to be the Chairman of RWA Federation which is the Society registered in June 2006. In the last undisputed election of the Managing Committee of the society, the petitioner was elected as Chairman. As per the bye-laws of the Society, the term of the Managing Committee is five years. It is admitted to the parties that the term of elected Committee had expired on 17.4.2016.

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As per the claim of the petitioner, the General body meeting dated 13.3.2016 was convened under the Chairmanship of the petitioner T.P. Tyagi, wherein it was resolved that the steps for elections of the Managing Committee be taken as the term was going to expire soon. The copy of the minutes of the meeting dated 13.3.2016 has been filed as 'Annexure-SA-2' to the supplementary affidavit dated 18.8.2018 to submit that the decision was taken to hold the election of Federation through ballot and to appoint an Election Officer to oversee the same.

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It is further contended that on 22.4.2016, in another meeting of the working committee, three member election committee was constituted comprising of General J.V. Jaini, B.P. Bansal and Hansraj Singhal. The election Committee was required to take all further actions for holding election of the Managing Committee. However, acting against the wishes of the General body, on a representation dated 20.5.2016 given under the signatures of 200 members of the General body, a meeting was called on 12.6.2016.

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Placing the letter dated 20.5.2016 of the members and intimation letter dated 8.6.2016 issued by the In-charge of the Election Committee, it is demonstrated by learned counsel for the petitioner that the meeting dated 12.6.2016 was called to place details of the accounts of the Association before the General body. Neither there was any agenda nor there was any intimation to the members of the Association that they were required to attend the meeting for election of the Managing Body.

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However, in propagation of the illegal act of respondent No.3, in the meeting dated 12.6.2016, which was attended by 241 members of the Association, resolution for No-Confidence was passed for removing the petitioner T.P. Tyagi, from the post of Chairman. Going ahead with their illegal agenda, the members present had preceded to elect the Managing Committee by consensus. This alleged election dated 12.6.2016 was set up by the respondent No.3, who claim to have been elected as the Honorary Secretary of the Association. Whereas the petitioner T.P. Tyagi, in furtherance of the wishes of the General body proceeded to hold the elections of the Managing Committee and in the General body meeting dated 10.7.2016, the elections were held.

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Both the rival factions have placed their papers before the Deputy Registrar for approval of their elections and registration of the list of Managing Committee.

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Faced with two rival claims, the matter was referred by the

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Deputy Registrar to the Prescribed Authority vide letter 27.7.2016.

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The Prescribed Authority approved the elections set up by respondent No.3 dated 12.6.2016 and consequently the elections dated 10.7.2016, set up by the petitioner was discarded.

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Learned counsel for the petitioner raises challenge to the elections dated 12.6.2016 on the following grounds:

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(1) As per the bye-laws, the General body meeting was to be called by the Secretary of the Association with the written permission of the Chairman. In case of special meeting, two days prior notice is required. The quorum for holding a valid meeting is one third of total number of members. However, the said quorum would not be required for the adjourned meeting, for the agenda being same.

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The meeting convened on 12.6.2016 was not called by the Chairman. Rather it was a meeting called by the Election Committee on the representation of 200 members to place the accounts of Association before the General House. Further, admittedly the quorum was not complete inasmuch as, only 241 members out of total 1100 members had participated. The meeting dated 12.6.2016, therefore, is an invalid meeting.

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(2) Second submission is that an election meeting cannot be convened in the absence of the agenda for the purpose being circulated amongst the members of the Association. There is no whisper in the intimation letter dated 8.6.2016 that the meeting dated 12.6.2016 was convened for holding elections of the Managing Committee. The resolution, if any, passed by 241 members would, therefore, fall.

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(3) In the written submissions dated 4.1.2017 filed by respondent No.3 as noted in the order impugned, it was admitted that the meeting of the General body dated 13.3.2016 was convened under the Chairmanship of T.P. Tyagi i.e. the petitioner to discuss

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about holding election of the new Committee in view of the fact that the tenure of the elected Committee was about to expire on 17.4.2016. It is also admitted that in the meeting of the Working Committee dated 22.4.2016, three members Election Committee was constituted.

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(4). The submission is that steps were being taken by the outgoing Committee to hold elections for constitution of new Committee cannot be denied by the respondent No.3. The intervention by the 200 members of the General body by writing a letter dated 20.5.2016 in the process of election was wholly uncalled for. In any case, for any grievances of respondent No.3, it was open for him to bring the same before the General House in a validly convened meeting under the Chairmanship of the petitioner T.P. Tyagi. In any case, the meeting dated 12.6.2016 cannot be said to be a valid meeting and the elections set up by respondent No.3 fall on this ground.

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Learned counsel for the respondents, on the other hand, vehemently submits that the records produced by the petitioner i.e. the minutes of the meeting dated 13.3.2016 and 22.4.2016 are fabricated. The correct copy of the minutes of the said meeting allegedly has been filed by the respondents in the short counter affidavit dated 19.8.2018.

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It is submitted that the claim of the petitioner regarding the election dated 10.7.2016 is based on forged document. The writ petition, therefore, deserves dismissal out-rightly.

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Considered the submissions of learned counsel for the parties and perused the records. The submission of learned counsel for the respondents with regard to the correctness of minutes of meeting dated 13.3.2016 and 22.4.2016 in the present petition cannot be accepted after going through the order impugned which categorically records the contents of objections of respondent No.3 at Page-28/29 of the paper book.

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A reading thereof indicates that the facts of convening of two meetings dated 13.3.2016 and 22.4.2016 under the Chairmanship of the petitioner T.P. Tyagi was not denied by respondent No.3 before the Prescribed Authority in his written objection dated 4.1.2017. The relevant portion of the order impugned is quoted as under:-

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^^Jh izeksn /kudM+ us ctfj;s vf/koDrk viuk fyf[kr tokc@cgl fnukWd 04&01&2017 nkf[ky fd;k x;k gSA Jh izeksn /kudM+ dh vksj vius fyf[kr tokc esa eq[; :i ls dFku fd;k x;k gS fd jsftMsUV osyQs;j QsMjs'ku xkft;kckn ds lafo/kku dh /kkjk 9¼[k½ ds vuqikyu esa fnukWd 13-03-2016 dks izfroknh Vh0ih0 R;kxh }kjk tujy ckWMh ehfVax cqyk;h x;h ftldh v/;{krk izfroknh ¼iwoZ v/;{k½ us dhA ml lHkk esa fnukad 17&04&2016 dks dk;Zdkfj.kh dk 5 o"kZ dk dk;Zdky lekIr gksus o ubZ dk;Zdkfj.kh dks p;fur gksus ij fopkj gqvkA fnukad 22&04&2016 dks izfroknh }kjk dk;Zdkfj.kh desVh dh ehfVax cqyk;h x;h ftldh v/;{krk lafo/kku dh /kkjk 10¼4½ ¼1½ ds vuqlkj tujy lsdszVªh dh vuqifLFkfr esa lsdszVªh Jh vt; tSu }kjk dh x;hA cSBd dh dk;Zokgh lsdszVªh }kjk fy[kh x;h] ftlesa 3 lnL;ksa dh pquko lfefr dk xBu fd;k x;k] ftuds uke tujy ts0oh0 tSuh] ch0ih0 caly o galjkt flagy gSA**

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It further appears that the dispute arose with the representation moved by 200 members before the Election Committee. A perusal of the representation dated 20.5.2016 appended as Annexure-'3' of the short counter affidavit shows that those members requested for convening the meeting of the General body for getting the details of the account of income and expenditure of the Association before the elections were held. A further perusal of the intimation letter dated 8.6.2016 issued under the signatures of the Prabhari/In-charge makes it clear that the meeting dated 12.6.2016 was called to discuss about the income and expenditure of the Association for ten years. The relevant

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extracts of the representation dated 20.5.2016 and intimation letter dated 8.6.2016 are to be quoted as under:

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" fnukad 20 ebZ]2016

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vkils lfou; fuosnu gS fd pquko ls igys laLFkk ls lEcfU/kr vkfFkZd ekeyksa dk vk;&O;; dk ys[kk&tks[kk crkus ds fy, vke lHkk cqykuh t:jh gSA laLFkk dk ys[kk&tks[kk 31 ekpZ] 2016 rd dk lnL;ksa dks u feyus ij lHkh lnL;ksa esa dkQh vkØks'k gSA

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vr% vkils uez fuosnu gS fd 'kh?kz&vfr&'kh?kz laLFkk dh vke lHkk cqykdj lnL;ksa dks ys[kk&tks[kk iznku djsaA

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fnukad 08@06@2016

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vki lHkh vknj.kh;@lEekfur lnL;ksa dks fuosnd dh rjQ ls cgqr gh lEeku iwoZd fouez fuosnu gS fd 12 twu 2016 fnu jfookj dks le; lqcg Bhd 10%00 cts x.kifr cSadV gkWy] utnhd ,e4 ;w ekWy] jktsUnz uxj] lSDVj&5] lkfgckckn ¼fodkusj ds ikl½ esa Lis'ky vke lHkk vkefU=r dh tk jgh gSA ftlesa vkidk vkuk vR;Ur izkFkZuh; gSA bl lHkk ds vUnj fiNys nl lky ds vk;&O;; dk ys[kk&tks[kk] fglkc fdrkc vkids le{k j[kuk izLrkfor gSA ftlesa vki lHkh lnL;ksa ds }kjk viuk fopkj foe'kZ djuk Hkh vR;Ur vko';d gSA

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;fn dksbZ lnL; lHkk esa viuh ckr j[kuk pkgrk gS rks og vius fopkjksa dks vo'; j[ksA vki lHkh ds fopkj cgqewY; gSA"

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Considering the contents of the above communications by no stretch of imagination, it can be assumed that on 12.6.2016, the meeting was called to hold the elections of the Managing Committee. The Prescribed Authority has committed grave illegality in ignoring this aspect of the matter and going by the CD (Compact Disc) of the Videography of the said meeting.

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Further fact that the meeting dated 12.6.2016 was not a valid meeting as quorum was not complete has been completely

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ignored. Learned counsel for the respondent No.3 has not been able to dispute the contents of the letters which are extracted from the short-counter affidavit filed by her on behalf of the respondent No.3. In absence of agenda for election of the Managing Committee and quorum, the meeting dated 12.6.2016 cannot be said to be a valid meeting. The elections set up by respondent No.3, therefore, fall.

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Now, the question remains as to the validity of the election dated 10.7.2016 set up by the petitioner.

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The said election has been discarded with the findings by the Prescribed Authority that no record of the proceedings was produced before it. This finding returned by the Prescribed Authority is being challenged in the present petition on the ground that the order dated 28.9.2017 has been passed on extraneous considerations and, therefore, the entire relevant material has been discarded.

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Having noted the above facts, this Court finds that while passing the order dated 28.9.2017, the Prescribed Authority namely the Sub-Divisional Officer, Ghaziabad did not take into consideration the relevant factors and has proceeded on extraneous consideration by taking irrelevant factors into consideration. The order dated 28.9.2017, therefore, cannot withstand the test of scrutiny. While setting aside the order dated 28.9.2017, the matter is remitted back to the Prescribed Authority only to consider the correctness of the election dated 10.7.2016 set up by the petitioner afresh by passing a reasoned and speaking order in accordance with law, expeditiously, preferably within a period of one month from the date of submission of certified copy of this order, after making due scrutiny to the relevant records. All the parties concerned shall be provided due opportunity of hearing to place material to substantiate their claim. All consequential actions are to be taken after taking a final

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decision in the matter.

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Subject to the above observations and directions, the writ petition is disposed of.

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(Sunita Agarwal, J.)

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Order Date :- 29.8.2018 Jyotsana

Colonel Tejandra Pal Tyagi v. Sub Divisional Magistrate Ghaziabad and 2 Others

Case brief

What is this about?

What did the court decide?

Colonel Tejandra Pal Tyagi v. Sub Divisional Magistrate Ghaziabad and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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