Sabhajeet Yadav, J.@mdashThe instant writ petition has been filed challenging the order dated 19.7.2003, contained in Annexure-13 of the writ petition, passed by Assistant Registrar, Firms Societies and Chits, Azamgarh, respondent No. 2 whereby the petitioner''s application/objection dated 7.4.2003 contained in Annexure-12 of the writ petition and application dated 19.4.2003 contained in Annexure-12-A of the writ petition against renewal of certificate of registration granted in favour of respondent No. 3 and for correction of list of committee of management of society have been rejected by the respondent No. 2. A further relief in the nature of writ of mandamus has also been sought for directing the respondents not to interfere in the functioning of the petitioner as Manager of the Society in question.
2. The brief facts leading to the case are that there is an institution known as ''Maqtav Zya-Ul-Oloom Sansthan'' Tari Bara Gaon, District Ballia run by a society registered on 28.10.1992 under The Societies Registration Act, 1860, hereinafter referred to as Act. Initially Sri Sobrati Ansari was Manager and Sirazul was President and Sher Ali was Vice President, Mohammad Ansari was Treasurer, Sarwar Ali was Deputy Secretary including them in all total 11 persons were elected as office bearers and members of Committee of Management of the society. On 8.10.1997 Mohd. Sobrati Ansari was re-elected as Manager and Sirazul as President and Sher Ali as Vice- President. On 28.5.2002 Mohd. Sobrali expired, on account of his death the post of manager fell vacant and on 16.6.2002 Mohd. Sarwar Ali was elected as Acting Manager of the committee. Later on Sri Sarwar Ali resigned from the post of manager due to his personal reasons on 17.9.2002. On the same day in the meeting of general body Mohd. Sher Ali was elected as Manager of the society. Thereafter the signature of Mohd. Sher Ali was attested by Basic Education Officer, Ballia as Manager of ''Maqtav Zya-Ul-Oloom Sansthan'' Tari Bara Gaon, District Ballia on 21.9.2002. According to the petitioner all the documents relating to the election of new committee of management and documents by which signature of new Manager, Mohd. Sher Ali was attested were given to Mr. Safiullah and Mukhtar Ansari and they were entrusted with the task of renewal of registration of the society. The petitioner was waiting the renewal but on 15.3.2003 petitioner shocked to know that behind his back the aforesaid two persons have played fraud by fabricating the documents and Mr. Safiullah, respondent No. 3 became Manager of new committee of management and obtained renewal certificate on 27.10.2002. When this fact came to the knowledge of petitioner then he informed the President and other members of committee on same day i.e. 15.3.2003 and an emergency meeting of general body was held and passed a resolution unanimously that the documents submitted by so called Manager Mr. Safiullah pertains to his election is forged and so called election shown by him is quite illegal. The general body has also authorised President and Manager to do needful and also inform the Registrar, Firms Societies and Chits, Azamgarh to cancel the renewal of certificate of registration in favour of Mr. Safiullah. In pursuance of resolution passed by general body the petitioner and President jointly wrote a letter to Assistant Registrar, Firms Societies and Chits, Azamgarh on 7.4.2003 stating the fact of fraud played by Mr. Safiullah and also requested to de-recognise so called committee of management of which Mr. Safiullah is Manager and also cancel the list of members of Managing body, which was registered on 12.12.2002. Thereupon on 5.5.2003 a notice was issued by Assistant Registrar, Azamgarh to Mr. Safiullah to appear on 30.5.2003 but he did not turn up on the date so fixed. Then again on 31.5.2003 a notice was issued to the same effect fixing date for his appearance on 17.6.2003. On the aforesaid date both the parties were appeared and adduced the evidences in support of their respective claim and after hearing them the order was reserved by the Assistant Registrar, which was later on pronounced on 19.7.2003. which is impugned in the writ petition. It is also alleged that surprising feature of impugned order is that respondent No. 2 believed the version of persons on the pretext of presuming them to be member of managing committee, whereas as a matter of fact all those persons have already ceased to be members of the general body in the year 2002 on account of non-payment of dues by a resolution of general body of the society and in their place new members were inducted. Thus the findings recorded by respondent No. 2 are contrary to the evidence on record and wholly erroneous. It is further stated that respondent No. 2 accepted the allegation of so called Manager Mr. Safiullah who has never been the member of society or committee of management but he is only stranger to the society. The impugned order passed by respondent No. 2 is based on extraneous and irrelevant considerations and not on the relevant material on record, therefore, the same is wholly erroneous and not sustainable at all.
3. On behalf of respondent No. 3 Mr. Safiullah Answari a detail counter affidavit has been filed in the writ petition, wherein before making parawise reply some facts having material bearing on question in controversy involved in the case have been given. In para 4 of the counter affidavit a preliminary objection has been raised by respondent No. 3 to the effect that against the order dated 19.7.2003 passed by Assistant Registrar, Societies, the petitioner has filed above noted writ petition in individual and personal capacity. The renewal of registration certificate of the society has been granted in favour of respondent No. 3 for a period of five years from 27.10.2002. Thus the writ petition is not maintainable and liable to be dismissed on this ground alone. In para 5 of the counter affidavit it is stated that the society in question was first time registered on 28.10.1992 for a period of five years i.e. upto 31.10.1997. In para 7 of the counter affidavit it is stated that in the year 1995 the respondent No. 3 has deposited Rs. 500/- as necessary fee for life membership to the then Manager of the committee of management Sri Sobrati who had accepted the fee and issued receipt to the respondent No. 3 on 19.2.1995. Since then the respondent No. 3 is continuing as such life member of the society. It is also stated in para 8 of the counter affidavit that the registration of the society was valid only upto 31.10.1997. Thereafter no efforts were made to renew the certificate of Registration of the society as such it became unregistered; hence the committee of management headed by Mr. Sobrati has also been ceased to exist. When Mr. Sobrati Ansari died on 28.5.2002 then committee of management called an urgent meeting to pass condolence resolution under the presidentship of Mr. Sher Ali. In the aforesaid meeting no other resolution of any kind for filling casual vacancy of Manager was passed. Thereafter another urgent meeting was called on 11.6.2002 by issuing necessary agenda in accordance of bye-laws of the society in which an unanimous resolution was passed to elect the respondent No. 3 as Manager of the committee of management. Thereafter the steps were taken for renewal of registration certificate of the society and ultimately vide order dated 28.10.2002 the Assistant Registrar approved the committee of management of the respondent No. 3. It is also alleged that Mr. Sher Ali has fraudulently got his signature attested by District Basic Education Officer as Manager of committee of management by misrepresentation and playing fraud upon him and signature of respondent No. 3 has been attested as Manager of the society on 2.6.2003. It is stated that in pursuance of objections made by the petitioner, Assistant Registrar issued notice to the concerned parties and in pursuance thereof out of 11 members and office bearers of the committee of management, 8 members and office bearers submitted their notary affidavit to the Assistant Registrar on 11.6.2003 in favour of respondent No. 3 refuting the claim of Sri Sher Ali as Manager of committee of management and denying his alleged election by saying that it is imaginary, forged and illegal. Several members and office bearers personally appeared before the Assistant Registrar and made their statements denying the illegal claim of Sher Ali. The aforesaid averments made in counter affidavit of respondent No. 3 were almost supported by the relevant documents enclosed with the affidavit. Assistant Registrar after going through the record and examining the witnesses appeared before him has approved the list of committee of management and office bearers submitted by respondent No. 3 by recording categorical finding of fact in this regard.
4. I have heard Sri S.D. Singh holding brief of Sri Pradeep Singh, learned counsel for the petitioner and Sri K.A. Ansari, learned counsel appearing on behalf of respondent No. 3 as well as learned Standing Counsel for respondents No. 1 and 2 and also have gone through record of the case. Since the affidavits have been exchanged between the parties and the case was ripped for final disposal, therefore, with the consent of the parties, the writ petition is decided finally on merit at admission stage itself.
5. Besides other grounds raised in the writ petition, the thrust of the submission of learned counsel for the petitioner is that in a given facts and circumstances of the case, since in the application moved before respondent No. 2, the petitioner has raised doubts and disputes about election and continuance of the office bearers of the society, therefore, it was obligatory upon the respondent No. 2 to refer the dispute before prescribed authority for adjudication u/s 25 of Act instead of deciding himself by the impugned order. In any view of the matter the impugned order also suffers from vice of various illegalities pointed out in the grounds of the writ petition. In support of his submission he has relied upon decisions of this court rendered in Vijai Narain Singh v. Registrar Firms, Societies and Chits Registration, U.P. Lucknow and Ors. reported in 1981 UPLBEC 308 and in Committee of Management, Baba Saheb Dr. Bhimrao Ambedkar Primary Pathshala, Azamgarh and Anr. v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur and Ors. reported in (1996) 2 UPLBEC 884.
6. Contrary to it learned counsel appearing for respondent No. 3, Sri K.A. Ansari has submitted that on the basis of material available on record and in given facts and circumstances of the case, the dispute in question as raised by the petitioner before the Assistant Registrar concerned cannot be said to be dispute u/s 25 of Societies Registration Act rather at the best it could have been a dispute u/s 3-A or Section 12-D (1) (c) of the Societies Registration Act and submitted that the petitioner has alternative remedy u/s 3-B of the Act to refer the matter to the State Government. Alternatively he has submitted that in case the petitioner has any grievance, in this regard it is open for him to have recourse of referring the dispute atleast by one fourth member of society before the prescribed authority but the Registrar cannot be compelled to refer the dispute before the prescribed authority u/s 25 of the Act and in any view of the matter, it is not desirable for this Court to issue a writ of mandamus directing the Registrar to refer the dispute before the prescribed authority u/s 25 of the Act. In support of his submission he has placed reliance upon the decisions of this Court rendered in Committee of Management, Kisan Shiksha Sudan, Banksahi, District Basti and Anr. v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. reported in (1995) 2 UPLBEC 1242 Kranti Kumar Chaturvedi and Anr. v. District Inspector of Schools, Kanpur Dehat and Ors. reported in 1995 (3) E.S.C. 166(All.), Shiksha Parishad, Nagwa, Ballia and Anr. v. Deputy Registrar, Firms, Societies and Chits, Faizabad Division, Faizabad and Anr. reported in (1998) 1 UPLBEC 290.
7. On the basis of rival contentions and submissions of learned counsels of the parties the questions arise for consideration as to whether in a given facts and circumstances of the case, the dispute raised by the petitioner before respondent No. 2 falls within the purview of Section 3-B or Section 12-D (1) (c) or Section 25 of the Act or it is a composite dispute as contemplated under both the sections i.e. Section 12-D (1) (c) and Section 25 of the Act? Even if the dispute comes within the meaning of Section 25 of the Act as to whether the respondent No. 2 was under any legal obligation to refer the same before the prescribed authority? If the respondent No. 2 failed to refer or did not refer the dispute before prescribed authority as to whether a writ of mandamus should be issued to compel the respondent No. 2 to refer the dispute before the prescribed authority or not?
8. Before dealing with the submissions of the learned counsels of the parties for better appreciation of question in controversy it is necessary to have a glance over the relevant provisions of the Act, having material bearing with the question in issue involved in the case. For ready reference the provisions of Section 3-B, Section 12-D (1) (c) Clause (2) & Clause (3) and Section 25 (a) (b) (c) are reproduced as under:
"3-B. Reference to the State Government.- If any question arises whether any society is entitled to get itself registered in accordance with Section 3 or to get its certificate of registration renewed in accordance with Section 3-A, the matter shall he referred to the State Government and the decision of the State Government thereon shall be final. "
"12-D. Registrar''s power to cancel registration in certain circumstances.- (1) Notwithstanding anything contained in this Act, the Registrar may, by an order in writing cancel the registration of any society on any of the following grounds-
(a).....................................
(b).......................................
(c) that the registration or the certificate of renewal has been obtained by misrepresentation or fraud;
Provided that no order of cancellation of registration of any society shall he passed until the society has been given a reasonable opportunity of altering its name or object or of showing cause against the action proposed to be taken in regard to it.
(2) An appeal against an order made under Sub-section (1) may be preferred to the Commissioner of the Division in whose jurisdiction the Headquarter of the Society lies, within one month from the date of communication of such order.
(3) The decision of the Commissioner under Sub-section (2) shall be final and shall not be called in question in any court. "
"25. Disputes regarding election of office-bearers. - The prescribed authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit :
Provided that the election of an office-hearer shall be set aside where the prescribed authority is satisfied -
(a) that any corrupt practice has been committed by such office-bearer; or
(b) that the nomination of any candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society."
9. Before adverting the submission of learned counsel for the petitioner it is necessary to dispose of the preliminary objection raised by the learned counsel of respondent No. 3 first. In this regard it is necessary to point out that although initially the writ petition has been filed by Sri Sher Ali in his personal capacity but later on he has moved an amendment application for correcting the description and adding the party in the writ petition. Accordingly the aforesaid application is allowed in the interest of justice and necessary incorporation is to be made by the office of this Court. Thus after the name of petitioner in the third lines following is to be added, "Manager, ''Maqtav Zya-Ul-Oloom Sansthan'' Tari Bara Gaon, District Ballia." After petitioner No. 1 following may be added as petitioner No. 2, "Committee of Management, ''Maqtav Zya-Ul-Oloom Sansthan'' Tari Bara Gaon, District Ballia'' through its Manager." Therefore, in view of this amendment the preliminary objection raised by the learned counsel of respondent No. 3 has lost its efficacy and accordingly rejected.
10. Another objection of learned counsel of respondent No. 3 is that in given facts and circumstances of the case, the dispute in question raised by the petitioner against renewal of certificate of registration of society in favour of respondent No. 3 is of such a nature which is covered by Section 3B of the Act, therefore, the matter is required to be referred to the State Government and the petitioner cannot move to this Court by filing the above noted writ petition for redressal of his grievances. Thus the instant writ petition is liable to be dismissed as not maintainable. In this connection it is necessary to point out that the provisions of Section 3-B of the Act deals with the cases that if any question arises whether any society is entitled to get itself registered in accordance with Section 3 or to get its certificate of registration renewed in accordance with Section 3-A, the matter shall be referred to the State Government. But from the perusal of applications moved by the petitioner and close scrutiny of the pleadings in the writ petition, there is nothing to indicate that the petitioner has raised any such grievance either in respect of registration of society in question in the situation visualized u/s 3 of the Act and/or in respect of renewal of certificate of registration in the situations visualized u/s 3-A of the Act, therefore, it can hardly be a dispute u/s 3-B of the Act, accordingly the submission of learned counsel of respondent No. 3 in this regard is without any substance and liable to be rejected.
11. Now the next submission of learned counsel of respondent No. 3 is that even if the dispute is not covered u/s 3-B of the Act, the same may be covered u/s 12D (1) (c) of the Act. According to him the petitioner has moved application for cancellation of renewal of certificate of registration and list of managing body of the society submitted by the respondent No. 3 before the respondent No. 2 as contemplated u/s 3-A (4) of the Act. Since after affording opportunity of hearing to the petitioner as well as respondent No. 3, the respondent No. 2 has recorded categorical finding of fact up-holding the renewal of certificate of registration of society already issued in favour of respondent No. 3 on 27/28-10-2002 and approved the list of managing body submitted by respondent No. 3 as required u/s 3-A (4) of the Act to be submitted along with the application for renewal of the certificate of registration and the same has been directed to be registered u/s 4-A of the Act, therefore, the impugned order passed by respondent No. 2 is perfectly justified in given facts and circumstances of the case and cannot be called for any interference under Article 226 of the Constitution of India. It is further submitted by counsel of respondent No. 3 that in view of law laid down by this Court since the provisions of Section 25 of the Act is attracted only when a party challenges the illegality or otherwise of the election of particular set of office bearers of society on the grounds enumerated in Section 25 of the Act, but the petitioner did not challenge the legality or otherwise of the election of particular set of office bearers on the grounds enumeration u/s 25 (a) (b) and (c) of the Act, therefore, the respondent No. 2 was not under any legal obligation to refer the dispute before the prescribe authority. Alternatively he has further submitted that in any view of the matter since there are two modes of reference of dispute before the prescribed authority u/s 25 of the Act; (a) one by Registrar and another (b) by atleast one-fourth member of the society itself, and from the perusal of Section 25 or any provisions of the Act there exist no provision at all which cast an obligation or duty upon the Registrar to refer the dispute before prescribed authority. Therefore, any writ or direction in the nature of mandamus should not be issued directing the Registrar to refer the dispute before prescribed authority particularly in a given facts and situation of the case. However in case the petitioner has any grievance against impugned order or action of respondent No. 2, he can get the dispute referred before the prescribed authority by one-fourth members of the society automatically without any assistance or intervention of Registrar of the societies under the second limb of Section 25 (1) itself. In support of his submissions learned counsel for the respondents has relied upon decisions of this Court referred earlier. The submission has some force and deserves to be accepted.
12. In case of Committee of Management, Kisan Shiksha Sadan, Banksahi (supra). In para 3 of the judgment a Division Bench of this Court has held as under:
"Having regard to the provisions of the Act, we see force in the submission of the learned counsel for the respondents. Section 4 of the Act provides that a list of members of the managing body of a society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a Society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the Society raise a doubt or dispute relating to the election of the members of managing body or society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a society to the Prescribed Authority, the Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances, as he has done in the present case. If an objection is raised about the membership of a person. In our view, it is the duty of the Registrar, for his own administrative purpose, to enquire into whether the person concerned is a member of the Society or not. If the Registrar comes to the conclusion that such a person is not a member of the Society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision. In the present case, the Registrar has applied his mind to the facts of the case to find out whether the second appellant herein or was not a member of the Shiksha Sadan. He found that he was not even a member of a Society. It is a pure question of facts. If any person feels aggrieved by such a decision, the proper course open to him is to approach the Civil Court and seek appropriate relief. The Registrar is bound by the decision of the Civil Court and his decision will be subject to the decree passed by the Civil Court."
13. In case of Kranti Kumar Chaturvedi and Anr. (supra) a Division Bench of this Court while dealing with the provisions of Section 12-D (1) (c) and Section 25 of the Act in para 4 of the judgment has held that Section 3 of the Act provides for registration of a society. Section 3-A of the Act provides for a renewal of certificate of registration of a society. Section 4 of the Act provides for sending annual list of managing body to the Registrar. Section 12-D of the Act provides for Registrar''s power to cancel the registration in certain circumstances. Section 25 of the Act provides for adjudication of dispute in respect of election of office bearers of 4 society or continuance of office bearers of society. A bare perusal of Section 12-D and Section 25 of the Act shows that both the provisions of the Act operate in different fields and contemplate different situation. Thereafter in para 5 and 6 a detail discussion has been made in this regard. For ready reference the observation made in para 5 and 6 of the judgment is reproduced as under :
"5. Section 12-D(1)(c) comes into play when an allegation is made that a body, claiming office bearers of a society, by misrepresenting facts or practicing fraud, has obtained the registration of a society or its renewal. If such allegation is made, the Registrar necessarily has to go into the question of validity of the constitution of a society applied for renewal of certificate of registration. Entitlement of the Office bearers of a society who apply for renewal of certificate of registration depends upon their valid constitution. Otherwise any fake body claiming office bearers of a society by misrepresenting facts may get renewal of certificate of registration of society in its name. Thus, it is open to the Registrar to go incidentally to the question of validity of Constitution of society, which has been granted renewal of certificate of registration, if any objection is raised that the office bearers who had applied for and has been granted renewal of certificate of registration is fake body and has obtained renewal by misrepresenting facts or by practicing fraud. However, in such proceeding an enquiry is limited to this extend, firstly, that office bearers who applied for and has been granted renewal of certificate of registration of society is legally entitled to it or not and secondly, whether the body who applied for, has obtained renewal of certificate of registration by misrepresentation or by practicing fraud or not. If in this proceeding it is found that the body, who applied for, has obtained renewal of certificate of registration by misrepresentation or by practicing fraud or not. If in this proceeding it is found that the body, who applied for and has been granted renewal of certificate of registration is not legally entitled to it and further it has obtained by misrepresenting facts or by practicing fraud, it is open to the Registrar to cancel the renewal of certificate of registration granted in favour of such a body."
"6. Section 25 of the Act contemplates different situation. It is attracted only when there is no dispute in respect of registration of society or its renewal of certificate of registration but there is dispute between two rival parties each of whom is claiming to be validly elected body. In such a situation the dispute between the two rival parties has to be referred for adjudication u/s 25 of the Act. Section 25 of the Act is also attracted when a party challenges the illegality or otherwise of the election of particular set of office bearers of society on the grounds enumerated in Section 25 of the Act. Thus the dispute u/s 25 of the Act can only be referred for adjudication only when it is found that the registration of the society or its renewal is intact. In the present case, since the objection was that the appellants are not legally elected body and have obtained renewal of certificate of registration by practicing fraud, it was well within the jurisdiction and power of the Registrar to entertain such objection and decide the same. The decisions relied upon by the learned counsel for the appellants in the case of Khapraha Educational Society and anothers (supra) is not applicable to the facts of the present case and is distinguishable. We are of the view that the order passed by the Registrar was well within his jurisdiction and the same is appeal able u/s 12-D of the Act."
14. In case of Shiksha Parishad, Nagwa, Ballia and Anr. (supra) the dispute was that Deputy Registrar by his order dated 4.4.95 held that Nagendra Kumar Pathak is entitled to prosecute the proceeding initiated for renewal of certificate of registration on the ground that original documents pertaining to the society were filed by him and not by Amar Nath Mishra who claims himself to be the President of the society. A Division Bench of this Court held that Section 3-A of the Act provides for renewal of the certificate of registration of a society has nothing to do with the resolution of any dispute or doubt in respect of election or continuance in office of an office bearer of society, accordingly there is no illegality while holding Sri Nagendra Kumar Pathak entitled to prosecute the proceeding for renewal of certificate of registration on the premises that it was he who has filed original documents pertaining to the society. There after referring Kranti Kumar Chaturvedi''s case and
15. Thus from intensive scrutiny and close analysis of the relevant provisions of the Act and law enunciated by this court from time to time referred herein before, it is clear that u/s 3(1) of the Act the Registrar has power to register the societies, while exercising the aforesaid power, he has discretion to issue public notice or notice to such persons as he thinks fit for inviting objection if any against proposed registration and consider all objections received by him before registering the society. u/s 3(2) of the Act he has power to refuse registration of society on the grounds enumerated therein after giving an opportunity of showing cause against such refusal. u/s 3-A of Act the Registrar has power to renew the certificate of registration. The aforesaid provisions also empowers refusal of renewal of certificate of registration on similar grounds as u/s 3(2) of the Act. Section 4 of the Act provides for submission of list of governing body or committee of the management of the society to the Registrar once in every year annually. If the Managing body is elected after last submission of the list, the counter signature of the old members as far as possible are required to be obtained on the list. The Registrar may in his discretion issue a public notice or notice to such persons as he thinks fit inviting objections within specified period and shall decide all objections received within said period. In Committee of Management, Kishan Shiksha Sudan''s case (supra) a Division Bench of this court in para 3 of the judgment categorically held that Section 4 of the Act provides that a list of members of managing body of the society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as Registrar. Section 25 of the Act provides for reference of doubt or dispute regarding the election of members of managing body of society. But when one-fourth members of society raise a doubt or dispute relating to the election of the members of managing body or society, the matter automatically goes to the prescribed authority for decision and in such case Registrar does not come into picture. In exercising this power whether to refer or not any doubt or dispute relating to election of members of the managing body of society to the prescribed authority, the Registrar has to apply his mind to the facts of the case and take a decision In taking such a decision, the Registrar will be quite justified to take into account all relevant circumstances. If an objection is raised about the membership of a person, it is the duty of Registrar, for his own administrative purpose, to enquire into whether the person concerned in member of the society or not. If the Registrar comes to the conclusion that such a person is not member of the society then he is under no obligation to refer the dispute or doubt relating to his election to the prescribed authority for decision. In my considered view, the aforesaid situation cannot be a sole situation where the registrar would be justified in refusing to refer the dispute before prescribed authority, there may be other situation also where the registrar would be justified in not referring the dispute before prescribed authority depending upon the facts and circumstances of the each individual case and no strait jacket formula can be laid down in this regard. In case of Kranti Kumar Chaturvedi (supra) a Division Bench of this court in para 5 of the judgment has held that Section 12-D (1) (c) comes into play when an allegation is made that a body claiming office bearer of a society by misrepresenting facts and practicing fraud has obtained registration of a society or its renewal. If such allegation is made, the Registrar necessarily has to go into question of validity of constitution of society applied for renewal of certificate of registration. Entitlement of the office bearers of a society who apply for renewal of certificates of registration depends upon their valid constitution, otherwise any fake body claiming office bearer of a society by misrepresenting facts may get renewal of certificate of registration of society in its name. Thus it is open to the Registrar to go incidentally to the question of validity of constitution of society, which has been granted renewal of certificate of registration. In such situation a limited inquiry about the entitlement of renewal, which is dependent upon the validity of constitution and practicing fraud is necessary. It is further held in para 6 of the judgment that Section 25 of the Act comes into play in altogether different situations only when the challenge is made in respect of election of office bearers or their continuance only on the grounds enumerated in Section 25 (a) (b) and (c) of the Act.
16. It is also necessary to point out that from a close scrutiny of the provisions of Section 25 and other provisions of the Act it is clear that there exist no provision at all which casts an obligation or duty upon the Registrar to refer doubt or dispute of election of office bearers of committee of management of the society before the prescribed authority although his power to refer such dispute cannot be doubted, therefore, in absence of such provision, no mandamus or any sort of direction asking the Registrar to refer the dispute before prescribed authority should be issued. It is well settled that in order to obtain a writ or order in the nature of mandamus, the applicant must satisfy atleast two conditions that (i) he has legal right to the performance of a legal duty (as distinguished from a discretion) by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition (ii) the duty that may be enjoined by mandamus may be one imposed by the constitution, statute or by rules or orders having the force of law, as held by Hon''ble Apex Court in case of (i) State of Haryana v. Subhash (1974) 1 S.C.R. 175 (ii)
17. However it does not mean to say that if there exist any dispute u/s 25 of the Act, the Registrar would be competent to decide it. Rather the same would be necessarily decided by the prescribed authority alone u/s 25 of the Act. Although the field of operation of the provisions of Section 12-D (1) (c) and Section 25 of the Act is quite distinct and different altogether as indicated herein before and there can be no overlapping upon each other, but at the same time possibility of existence of joint or composite dispute both u/s 12-D (1) (c) and Section 25 of the Act cannot be ruled out. In that eventuality the Registrar would be justified in deciding the dispute u/s 12-D (1) (c) of the Act to the extent of the dispute falls within his jurisdiction according to the test indicated herein before and while doing so he will have to make necessary inquiry in this regard to the extent indicated herein before. In respect of remaining part of the dispute covered by Section 25 of the Act there are two modes of reference of dispute before the prescribed authority u/s 25 of the Act i.e. (i) by Registrar and another (ii) by atleast one fourth members of the society who are also empowered to refer the dispute before the prescribed authority without having any assistance from the Registrar of the society. The aforesaid provisions are based on sound public policy. In the cases where the registrar is not satisfied about the existence doubts or dispute in respect of the election or continuance of an office bearers of such society he need not to refer any dispute before prescribed authority on mere asking for. It is because of another reason too that the office of Registrar should not be abused for referring fake and imaginary disputes of election of office bearers or their continuance in such office. Conversely if there exist a bonafide and genuine dispute as contemplated by the provisions of Section 25 of the Act and Registrar does not refers the dispute, the aggrieved party would not be without remedy rather the same may be referred straight way before prescribed authority by atleast one fourth members of society without any assistance of the Registrar. Thus the second limb of Section 25 (1) of the Act, in my considered opinion is an alternative arrangement of the reference of such dispute before prescribed authority and the same may be treated to be an alternative statutory remedy available to the aggrieved party for aforesaid limited purpose. But at the same time 1 should not be understood to say that this arrangement may be in the sense to test the validity of order passed by Registrar before the prescribed authority as the prescribed authority is not appropriate forum to test the legality of order passed by the Registrar. The aforesaid provision should also not be understood to create any bar in exercise of extra-ordinary writ jurisdiction of this Court, Rather the aforesaid provisions should be taken into account by this Court having regard to the facts and circumstances of the case for refusing to exercise discretion in writ jurisdiction under Article 226 of the Constitution of India.
18. In this connection it is also necessary to point out that although a society registered under the Act is not a corporate body but is merely an association of persons yet expression ''society'' registered under the Act is independent and separate legal entity, different from the office bearers, governing body and the members of the society for certain purposes. The office bearers and governing body represents collective will of all the members and the society as a whole. Therefore, the dispute u/s 25 of Act would be a collective dispute of society as the office bearers of the society claims to represents the society as a whole. It is not a dispute like dispute of individual person. Thus, in case there exist a bonafide and genuine dispute u/s 25 of the Act and Registrar does not choose to refer the same before prescribed authority, the Legislature had taken care of such situation and the provisions have been made to safeguard the interest of society from going it into wrong hands and in such situation the second limb of Section 25 (1) of the Act can be pressed into service for referring the dispute before the prescribed authority. If any such dispute is referred before the prescribed authority, the same would be bound to decide it. If in such a decision of prescribed authority the election is set aside or an office bearer is held no longer entitled to continue in the office, then thereafter the Registrar would be bound to proceed according to the provisions of Sub-section (2) of Section 25 of the Act and he will call a meeting of general body of such society for electing such office bearer or office bearers, which shall be presided over and be conducted by him or any other officer authorised by him according to the rules of society relating to meeting and election with necessary modification and no other meeting shall be called for the purpose of election by any other person claiming to be an office bearer of the society as contemplated by Sub-section (3) of Section 25 of the Act. Consequently the renewal of the certificate of registration of the society already granted would remain unaffected and would enure to the benefit of the new office bearers of society elected under Sub-section (2) of Section 25 of the Act, and the list of managing body submitted u/s 3-A (4) and annual list submitted u/s 4 of the Act would be also modified accordingly.
19. At this juncture it is necessary to point out that the discretionary jurisdiction under Article 226 of the Constitution of India is to be exercised by this Court in well-accepted parameters. The discretionary jurisdiction has to be confined in declining to entertain the petition and refusing to grant relief, asked for by the petitioner, on adequate considerations, and it does not permit the High Court to grant relief on such consideration alone as held by Hon''ble Apex Court in case of
"It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications but this discretion has to be confined in declining to entertain petitions and refusing to grant relief, asked for by petitioners, on adequate considerations, and it does not permit the High Court to grant relief on such a consideration alone."
20. Now it is necessary to examine the facts of the case in the light of submission of counsels for the parties. At very outset it is necessary to point out that from the perusal of application moved by the petitioner before Assistant Registrar on 7.4.2003 contained in Annexure-12 of the writ petition and application dated 19.4.2003 contained in Annexure-12-A of the writ petition it appears that the petitioner has come forward with the case that in the meeting of general body dated 17.9.2002 the petitioner has been elected as Manager of Committee of Management of the society and the task of renewal of certificate of registration was entrusted to Mr. Safiullah Ansari and Mukhtar Answari but instead of getting it renewed as directed to them, they have played fraud and misrepresented before the Registrar and obtained renewal of certificate of registration with the list of committee of management of the society wherein Mr. Safiullah respondent No. 3 has been shown as Manager of committee of management of the society and the Assistant Registrar has been requested to inquire into the matter and modify/correct the list of committee of management according to the list submitted by the petitioner u/s 3(4) of the Act. By subsequent application dated 19.4.2003 moved to the Assistant Registrar contained in Annexure-12-A of the writ petition the Chairman of the society Sri Sirazuddin has stated that the list of committee of management of the society dated 12.12.2002 which has been registered by the office of Assistant Registrar is forged and has been illegally registered by changing the name of Manager and the same has been cancelled by the Chairman of the society on account of its being incorrect and forged and it has been requested that the list dated 12.12.2002 may be cancelled and new list enclosed alongwith aforesaid application/letter may be registered. Upon the aforesaid application moved by petitioner a detail inquiry has been conducted by the Assistant Registrar by issuing notice to the petitioner as well as respondent No. 3 in pursuance thereof both the parties have adduced their evidences in support of their respective claim. After holding the inquiry the respondent No. 2 has found on the basis of evidences adduced before him that the renewal of certificate of registration issued in favour of Safiullah Ansari, respondent No. 3 on 27.10.2002 for a period of five years and recognizing him as Manager of committee of management of the society is correct as he has full support of the members of society, whereas the alleged election of members of committee of management of the society dated 17.9.2002 wherein the petitioner claims to have been elected as Manager of committee of management of the society, was found take and imaginary and not genuine at all. It has been categorically held that out of 11 members of committee of management of the society only Sri Siruzuddin and Sarwar Ali has supported the claim of petitioner Sher Ali and remaining members of the committee of management, several other persons have filed notary affidavit in support of claim of Safiullah and several other persons have made their statement before the respondent No. 2 by putting their appearance before him in support of claim of respondent No. 3. On the basis of aforesaid materials and other materials available records the respondent No. 2 has recorded categorical finding that by moving the aforesaid application referred above the petitioner is trying to raise fake and imaginary dispute in his personal interest on the basis of imaginary proceedings dated 17.9.2002. Accordingly the renewal of certificate or registration granted on 27.10.2002 for a period of five years in favour of Safiullah has been found valid and correct and the list of members of committee of management submitted by Safiullah u/s 3(4) of the Act was also found correct and directed to be registered u/s 4A of the Act. Thus in view of the aforesaid facts and circumstances of the case, I am of considered opinion that the present dispute completely falls within the four corners of Section 12-D (1) (c) of the Act and it cannot be a dispute within the meaning of provisions of Section 25 of the Act as there is nothing to indicate from perusal of application/objection of the petitioner contained in Annexures-12 and 12-A of the writ petition that the petitioner has raised any dispute on any grounds enumerated u/s 25(1) (a), (b) and (c) of the Act or he has made any request from respondent No. 2 to refer the dispute u/s 25 of the Act before the prescribed authority. The incidental inquiry regarding the validity of constitution of committee of management was necessary for determination of entitlement of renewal of certificate of registration and practicing of fraud and misrepresentation while seeking such renewal in view of law laid down by Division Bench of this Court in Kranti Kumar Chaturvedi''s case (supra). Therefore, the submission of learned counsel of petitioner that before the respondent No. 2, the petitioner has raised any dispute u/s 25 of the Act is wholly misconceived and without any substance hence liable to be rejected.
21. In support of his submission with regard to desirability of reference of dispute u/s 25 of the Act before prescribed authority the learned counsel of petitioner has also placed reliance upon the case of Vijai Narain Singh (supra) wherein the petitioner of the aforesaid case has alleged that election of office bearers of society took place and he was elected as Manager-cum-Secretary. He applied to the Registrar for renewal of registration of the society and in due course the Registrar granted the renewal with the petitioner being the Manager-cum-Secretary of the society. Subsequently respondent No. 5 who was erstwhile Manager-cum-Secretary moved a complaint before the Registrar that the renewal had been obtained by fraudulent elections and that the petitioner was never elected as Manager-cum-Secretary. It was further asserted that the respondent No. 5 continued to remain as the Manager-cum-Secretary. There upon Registrar called upon the petitioner as well as respondent No. 5 to produce evidence in support of their respective cases. He ultimately held respondent No. 5 to be the duly elected Manager-cum-Secretary and directed the petitioner to hand over renewal certificate to respondent No. 5. Aggrieved against which the writ petition was filed before this Court. A Division Bench of this Court has held that this was an election dispute. It is apparent that the Registrar himself has no jurisdiction to hear and decide any doubt or dispute in respect of an election or continuance in office of an office bearer of the society. His decision that the respondent No. 5 continues to be the Manager-cum-Secretary or that the petitioner was not duly elected was wholly without jurisdiction. He was in law bound to refer the dispute to the Prescribed Authority. The second case upon which counsel of petitioner has placed reliance is the case of Committee of Management, Baba Saheb Dr. Bhimrao Ambedkar Primary Pathshala (supra) in para 9 of decision the learned Single Judge of this Court has held that in present case, in my view, the dispute that has been decided by the Assistant Registrar is in effect a dispute with regard to the election and the eligibility of office bearers to continue in office as has been understood from the translation of the impugned order made at the bar. In my considered view the aforesaid decisions referred by learned counsel of the petitioner rendered in case of Vijai Narain Singh (Supra) is not applicable to the facts of the present case and is distinguishable. In aforesaid case the contents and scope of provisions of Section 12-D (1) (c) of the Act vis-a-vis the contents and scope of provisions of Section 25 of the Act had not been under consideration. After narrating the facts of the case a Division Bench of this Court straight way have drawn the conclusion without recording any reason for arriving at such conclusion. Besides this the subsequent decisions of Division Bench of this Court rendered in Kranti Kumar Chaturvedi''s case is binding upon me. It is also because of the latter in point of time inasmuch as the judgment is well discussed and elaborate on the question in issue, therefore, the aforesaid case cited by the counsel of petitioner is of no assistance to the case of the petitioner. Similarly the second case upon which the learned counsel of petitioner has placed reliance is also distinguishable on facts and can be of no assistance to the case of petitioner.
22. Even assuming for the sake of argument that at any stretch of imagination the dispute as raised by the petitioner before respondent No. 2 and as submitted by learned counsel for the petitioner falls within the purview of Section 25 of the Act yet it is open for one fourth members of society to refer the same before prescribed authority under the second limb of Section 25(1) of the Act without seeking any assistance from the Registrar of the society and former shall decide the same in a summary manner and pass appropriate orders in accordance with the provisions of law. In case it is found that the election or continuance of any office bearers of the committee of management is illegal and the same is set aside and held that an office bearer is no longer entitled to continue in the office then Registrar is bound to proceed u/s 25 (2) of the Act and he will call a meeting of general body of society for electing such office bearer or office bearers of the society and upon such election the renewal of certificate of registration granted in favour of respondent No. 3 would remain unaffected, but it would enure to the benefit of new elected office bearer or office bearers of committee of management of the society till the remaining, period for which the renewal of certificate of registration has been granted by the impugned order and the list of the committee of management submitted by the respondent No. 3 before the Registrar u/s 3(4) of the Act which has been directed to be registered u/s 4-A of the Act vide impugned order dated 19.7.2003 shall also be modified and corrected according to the election held by the Registrar in exercise of his power u/s 25(2) of the Act. Thus having regard to the facts and circumstances of the case, I am of considered view that a writ or order in the nature of mandamus should not be issued by this Court directing the respondent No. 2 to refer the dispute before the prescribed authority u/s 25 of the Act. It is also because of the another valid reason that in the objection/application dated 7.4.2003 and 19.4.2003 contained in Annexures-12 and 12-A of the writ petition the petitioner did not raise any such grievance nor made any request before respondent No. 2 to refer the dispute before prescribed authority which is an essential ingredient for writ of mandamus nor any specific prayer of mandamus has been made in the writ petition.
23. Besides this it is also necessary to point out that in the writ petition, first time the petitioner has tried to improve his case by making allegation that the some of the persons whose version has been relied upon by the respondent No. 2 while passing the impugned order were no longer remained as member of the society on account of non-payment of membership fee within due course of time and respondent No. 3 is also stranger to the society. In this regard it is necessary to point out that the allegation has been controverted by the respondent No. 3 in para 7 of the counter affidavit wherein it has been specifically stated that in the year 1995 the respondent No. 3 has deposited Rs. 500/- as necessary fee for life membership to the then Manager of committee of management Sri Sobrati who had accepted fee and issued receipt to the respondent No. 3 on 19.2.1995 since then he is continuing as member of the society. The copy of receipt of fee for life membership of respondent No. 3 has also been filed as Annexure C.A.-3 to the aforesaid counter affidavit. Although in the rejoinder filed by the petitioner the allegation contained in para 7 of the counter affidavit has been denied and the signature made by the then Manager has also been disputed and said that the aforesaid receipt is forged and fake receipt and does not bear the real signature of the then Manager Sobrati Answari. Since these points have been raised first time by the petitioner in the writ petition and the same were not raised before the respondent No. 2 so as to enable him to make inquiry on the aforesaid aspect of the matter. The aforesaid inquiry was well within the jurisdiction of the Registrar. In absence of such plea raised before the respondent No. 2, the impugned order cannot be said to be faulty on that count, as such the same cannot be permitted to be raised first time in the writ petition. It is well settled that a new point raised for the first time in an application under Article 226, requiring determination of questions of fact will not be entertained. However in this regard it is necessary to point out that on the aforesaid disputed questions of fact there is no material on the basis of which this court can arrive at a correct conclusion without appreciating evidence on record, which is not permissible in given facts and circumstances of the case.
24. On a conspectus of the whole issue, it is thus difficult to comprehend that the dispute in question falls within four corner of the Section 3-B or Section 25 of the Act. In my considered opinion, it completely falls within the four corner of Section 12-D (1) (c) of the Act, therefore, the respondent No. 2 was fully empowered to decide the same. The decision of the respondent No. 2 is perfectly justified in given facts and circumstances of the case. No fault can be found calling for any interference in the order impugned in the writ petition. In given facts and circumstances of the case, it is not necessary to issue writ of mandamus asking the respondent No. 2 to refer any alleged dispute before prescribed authority. However in case the petitioner has any grievance, in the matter it is open for him to press the second limb of Section 25(1) of Act into service for reference of alleged dispute for adjudication before prescribed authority, who shall there upon adjudicate the same and follow-up action may be taken thereafter in accordance of the provisions of law indicated herein before in the preceding paragraphs of the judgment. Thus in view of the facts and circumstances of the case, the petitioner is not entitled for any relief claimed in the writ petition, the writ petition is devoid of merits, hence the same is liable to be dismissed.
25. In view of discussions made above, the writ petition fails hence dismissed.
There shall be no order as to costs.
