Judgment:
Arun Tandon, J.
1. Heard Sri Mithilesh Kumar Tiwari, learned counsel for the petitioners, Sri Ashok Khare, senior advocate, assisted by Sri V.K. Agarwal, learned counsel for the respondent Nos. 2, 3 and 4 and learned standing counsel for the respondent Nos. 1 and 5.
2. Committee of Management of Janta Vidyalaya Samiti, Mahamaya Nagar through its President, Sri Ajant Singh and one Sri Neeraj Yadav have filed this writ petition against the order of the Deputy Registrar. Firms, Chits and Societies, Agra, dated 19th November, 2003 whereby, after adjudicating upon the rival set of elections, he has proceeded to hold that the elections dated 30th June, 2003, are legal and valid and, therefore, had directed that the list of office bearers submitted in pursuance of the aforesaid elections be registered under Section 4 of the Societies Registration Act.
3. It is contended on behalf of the petitioners that the aforesaid order of the Deputy Registrar dated 19th November, 2003 is without jurisdiction inasmuch as there was a bona fide dispute between two rival set of office bearers on the' basis of two elections first held on 18th July, 2003, wherein the petitioners, namely, Sri Ajant Singh was elected as President and Sri Neeraj Yadav as Vyavasthapak/Manager (elections of the petitioners). The other set of elections are alleged to have taken place on 30th June, 2003, in which Sri Hari Prasad Yadav was elected as President, Sri Brijesh Kumar as Secretary and Sri Bharat Singh Vyavasthapak/Manager. The said dispute could have been adjudicated upon by the Prescribed Authority under Section 25 (1) of the Societies Registration Act and the Deputy Registrar was under legal obligations, to have referred the dispute to the Prescribed Authority under Section 25 (1) of the Societies Registration Act. Reliance, in support of the contention has been placed upon the judgments of this Court in Committee of Management v. Secretary, Arya Kanya Inter College, (1999) 2 UPLDEC 77; Sitaram Rai and Ors. v. Additional Registrar, Firm, Societies and Chits, Gorakhpur Division, Gorakhpur and Ors. 2003 (5) AWC 4159 : 2003 (3) ESC 1617 (All).
4. It is stated that the impugned order proceeds on misconception of fact and law that the finding recorded in Original Suit being Original Suit No. 138 of 1994 would operate as res judicata against the petitioners. In paragraph 3 of the writ petition it has been stated that the impugned order dated 19th November, 2003, has been passed without affording opportunity of hearing to the petitioners.
5. Lastly, it is submitted that even if the alleged elections of the petitioner are not accepted, the Deputy Registrar was under legal obligations, to record findings, (a) as to whether Sri Bharat Singh was competent to hold fresh elections or not, (b) whether the elections dated 30th June, 2003, set up by Sri Bharat Singh Yadav were held in accordance with the registered bye-laws of the society or not, which has not been done. The order dated 1st November, 2003, was passed in manifest of non-compliance of Section 4(1) (proviso) of the Societies Registration Act, inasmuch as the' list of the office bearers submitted by Sri Bharat Singh Yadav on the basis of the elections dated 30th June, 2003, was not countersigned by the outgoing office bearers.
6. On behalf of the respondents it is contended that the Deputy Registrar under the impugned order has held that Sri Neeraj Yadav is not even a primary member of the society and, consequently, he could not have held any elections and as such there was no bona fide dispute of elections, which was required to be adjudicated upon by the Prescribed Authority under Section 25 (1) of the Societies Registration Act. The Deputy Registrar is not required to act as post office. In the facts of the present case the Deputy Registrar has rightly held that there was only one set of valid elections and has, therefore, rightly registered the list of office bearers of the society under the impugned order. In support of the said contention, respondents have placed reliance upon the judgment in Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and Anr. v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. , (1995) 2 UPLBEC 1242.
7. Respondent submits that the judgment of the Civil Judge, Sadabad, Hathrash (Mahamaya Nagar) dated 26th September, 2003 passed in Civil Suit No. 138 of 1994 with regard to issue No. 11 would operate as res judicata. The same has become final between the parties. The Civil Judge has held that Sri Neeraj Yadav was not even a primary member of the general body nor the Manager of the Committee of Management of the Janta Vidyalaya, Mahamaya Nagar. The said finding recorded by the Civil Judge in respect of issue No. 11, which has become final between the parties, cannot be permitted to be questioned by Sri Neeraj Yadav before the Deputy Registrar, Firms, Societies and Chits, Agra. In reply to paragraph 31 of the writ petition, in paragraph 25 of the counter-affidavit it has been stated that the objections of the petitioners have been rejected after affording opportunity of hearing to the' petitioners for valid reasons.
8. I have heard learned counsel for the parties and have gone through the records of the present writ petition.
9. The relevant facts for decision of the present writ petition are that Janta Vidyalaya Samiti, Mahamaya Nagar is a registered society under the Societies Registration Act. The said society runs and manages a recognized intermediate college in the name and style of Janta Inter College, Sahpau Mahamaya Nagar. Under Rule 6 of the bye-laws of the society, it is provided that the Managing Committee of the society shall constitute a Committee of Management to look after the affairs of the educational institution. The Vyawashthapak of the society ex qfflcio becomes the Manager of the Committee of Management of the institution.
10. Upto 4th December, 1991, there was no dispute in respect of the Committee of Management or of the institution. Sri Ram Prakash Yadav, who was the Vyawashthapak/Manager, expired on 4th December, 1991. On his death Sri Bharat Singh Yadav set up a claim for the post of Manager of the institution. The claim of Sri Bharat Singh Yadav was turned down by the District Inspector of Schools, Mathura vide order dated 26.12.1991. Feeling aggrieved by the aforesaid order of District Inspector of Schools, Sri Bharat Singh Yadav filed a writ petition before this Court, being Writ Petition No. Nil of 1992, and this Court vide order dated 23rd January, 1992 passed an interim order in his favour. Under order of this Court Sri Bharat Singh Yadav continued to work as Manager of the institution for its remaining term.
11. On 6th February, 1994, fresh elections of the office bearers of the society took place, in which Sri Ajant, Singh Yadav (petitioner No. 1) was elected as Prabandhak/President, Sri Sohan Lal was elected as Mantri/ Secretary and Sri Jaswant Singh was elected as Vyawashthapak/Manager of the society. The aforesaid elections of the society dated 6th Feburary, 1994, were questioned by Sri Bharat Singh Yadav by way of objections before the Deputy Registrar, Firms, Societies and Chits. The Deputy Registrar, after affording opportunity to the parties concerned, by means of the order dated 18th July, 1994, held that the elections set up by Sri Sohan Lal, claiming himself to be elected as Mantri/Secretary, dated 6th February, 1994, were in accordance with the bye-laws of the society, while the elections set up by Sri Bharat Singh Yadav are claimed to have been held in accordance with the approved scheme of administration of the institution. In such circumstances, the Deputy Registrar directed that the list of office bearers elected on 6th February, 1994, be registered, as the elections had taken place in accordance with the registered bye-laws.
12. Feeling aggrieved by the aforesaid order of Deputy Registrar dated 18th July, 1994, respondent No. 3 Sri Bharat Singh Yadav filed Anr. writ petition before this Court being Civil Misc. Writ Petition No. 24437 of 1994, wherein a conditional interim order was granted. Under said interim order of this Court, no restrain was placed on the functioning of the office bearers of the society, the list whereof had already been registered. Accordingly an advertisement was invited by the office bearers of the society in Hindi Newspaper 'Dainik Jagaran' inviting elections of the Committee of Management of the institution.
Election notification so published by the office bearers of the society, was challenged by Sri Bharat Singh by means of a suit being Civil Suit No. 138 of 1994, Bharat Singh v. Ajant Singh, before the court of Munsif, Sadabad, Mathura. In the said suit no interim injunction was granted as a result whereof fresh elections for constituting the Committee of Management of the institution took place on 3rd October, 1994, in which Sri Ajant Singh was elected as Manager. Sri Bharat Singh challenged the aforesaid elections also by way of an amendment in the Civil Suit No. 138 of 1994. During the pendency of the aforesaid civil suit proceedings the term of the elected Committee of Management (three years) has expired. As such fresh elections of the office bearers of the society took place on 20th June, 1997, in which Sri Ajant Singh was again elected as President and Sri Sohan Lal was elected as Secretary. Sri Bharat Singh filed objections to the list of office bearers submitted in pursuance of the aforesaid elections dated 20th June, 1997, before the Deputy Registrar, Firms, Societies and Chits. The objections so filed by Sri Bharat Singh, the Deputy Registrar referred the dispute under Section 25 of the Societies Registration Act to the Paragana Adhikari, Sadabad. During the period of said proceedings, elections of the Committee of Management of the institution also took place on 13th September, 1997, in which Sri Neeraj Yadav was elected as the Manager. Before the reference could be decided, the term of the elected Committee of Management was also expired and the fresh elections of the office bearers of the society took place on 4th June, 2000, in which Sri Ajant Singh was again elected as President. Against the aforesaid elections dated 4th June, 2000, objections were again filed by Sri Bharat Singh before the Deputy Registrar, Firms, Societies and Chits. The Deputy Registrar, however, rejected the said objections filed by Sri Bharat Singh and vide order dated 5th May, 2001, directed that the list of office bearers elected on 4th June, 2000, be registered. The term of the Committee of Management elected in the year 2000 was expired in the year 2003, and accordingly, the fresh elections were invited in daily newspaper 'Aaj' for 18th July, 2003. The elections were accordingly, held and Sr: Ajant. Singh was again elected as President, Sri Neeraj Yadav was elected as Vyawashthapak and Sri Ajeet Singh was elected as Mantri. The proceedings in respect of the elections dated 18th July, 2003 were forwarded to the Deputy Registrar, Firms, Societies and Chits after being duly countersigned by the outgoing office bearers vide letter dated 21st July, 2003. Sri Bharat Singh Yadav instead of filing the objections of the aforesaid elections dated 18th July, 2003, now set up his independent elections dated 30th June, 2003 and forwarded the papers pertaining to the aforesaid elections to the Deputy Registrar, Firms, Societies and Chits for the first time on 1st November, 2003. On the same date the Deputy Registrar without complying with the provisions of Section 4(1) proviso of the Societies Registration Act registered the list of office bearers submitted by Sri Bharat Singh pertaining to the elections dated 30th June, 2003. Against the said order dated 1st November, 2003, the petitioner moved an application dated 3rd November, 2003, for recall of the said order dated 1st November, 2003. The application so filed by the petitioner has been rejected by the Deputy Registrar by means of the order dated 19th November, 2003. Under the impugned order it has been held that Sri Neeraj Yadav is not even a primary member of the society and, consequently, the elections set up by him cannot be recognized/accepted, therefore, it has been decided to maintain the order dated 1st November, 2003, whereby the list of office bearers submitted by Sri Bharat Singh on the basis of elections dated 30th June, 2003, had been registered.
13. So far as the order dated 1st November, 2003, is concerned, it is established from records that the said order was passed by the Deputy Registrar without complying with the requirements of Section 4(1) proviso of the Societies Registration Act. The list of office bearers submitted by Sri Bharat Singh on the basis of elections dated 30th June, 2003, was not countersigned by the outgoing office bearers. The Deputy Registrar did not invite objections as contemplated by the proviso to Section 4(1) of the Act proceeded to register the same on the very date the list was submitted in his office.
14. In the opinion of the Court the procedure adopted by the Deputy Registrar, as such, is patently illegal and order dated 1st November, 2003, cannot be sustained.
15. So far as the order dated 19th November, 2003 is concerned, the jurisdiction of the Deputy Registrar to pass the impugned order is required to be judged on the following issues, namely, (i) whether Sri Neeraj Yadav was bona fide member of the general body of the society and therefore, the elections set up by him could not have been held to be a mere transaction; (ii) whether in the facts of the present case there was a bona fide dispute with regard to the elections of the office bearers of the society, which are required to be referred under Section 25(1) of the Societies Registration Act to the Prescribed Authority.
Decision on Issue No. (I)
16. From the order passed by the Deputy Registrar, Firms, Societies and Chits dated 19th November, 2003, it is apparently clear that after reproducing the portion of the order of the civil court dated 26th September, 2003, whereby in the Civil Suit No. 138 of 1994, issue No. 11 has been decided no other finding has been recorded by the Deputy Registrar.
17. Thus, the controversy with regard to Sri Neeraj Yadav being a member of the general body of the society revolves around only one question namely, whether the finding recorded in respect of issue No. 11 by the civil court in Civil Suit No. 138 of 1994, would operate as res judicata or not. For deciding the said issue it is worthwhile to refer the issue No. 11, which reads as follows :
^^D;k uhjt ;kno turk b.Vj dkWystds izcU/kd ,o f'k{k.k laLFkk ds lnL; gSaa **
18. The finding recorded by the civil court in respect of said issue mentioned on page 72 of the writ petition reads as follows :
^^i=koyh ij dksbZ Hkh ,slk lk{;miyC/k ugha gS u gh izfroknhx.k us vius lk{; esa bl ckr dks Li'V fd;k gS fdnkok nk;j djrs le; uhjt ;kno laLFkk ds lnL; Fks ;k izcU/kd Fks pwafd izfroknhx.kbl ckr dks lkfcr djus esa vlQy jgk gS fd nkok nk;j djus dh frfFk ds le; uhjt ;knolnL; Fks vr% esjs fopkj esa okn fcUnq la[;k 11 izfroknhx.k ds fo:) rFkk oknh dsgd esa ldkjkRed :i ls fu.khZr fd;k tkuk lgh izrhr gksrk gS D;ksafd ;gka ij ;gfookn ugha gS fd vkt dh rkjh[k eas uhjt ;kno izcU/kd ;k lnL; gSa ;k ugha A vktdh rkjh[k esa rks og izcU/kd gS A bl ckr dks Mh- MCY;w- 1 us vius lk{; esa lkfcrHkh fd;k gS vkSj bEIykbM :i ls oknhx.k us ekuk Hkh gSaa ysfdu nkok nk;j djus dhfrfFk esa og u rks lnL; Fkk u gh izcU/kd Fkk] ugh muds }kjk dksbZ lnL;rk dh jlhnnkf[ky dh x;h u gh dksbZ lk{; nkf[ky fd;k vkSj u gh m jlhn ,oa lk{; dksijhf{kr djk;k vkSj u gh lkfcr djk;k A mijks ifjfLFkfr;ksa dks es utj j[krsgq;s okn fcUnq la[;k 11 oknh ds gd esa izfroknh ds fo:) udkjkRed :i ls fu.khZrfd;k tkuk U;k; laxr izrhr gksrk gS okn fcUnq la[;k 11 oknh ds gd esa izfroknh dsfo:) udkjkRed :i ls fu.khZr fd;k tkrk gS A**
19. For a finding to operate as res judicata having regard to the' principles enshrined under Section 11 of the Code of Civil Procedure, it is necessary that the following three conditions must be satisfied, namely, (a) the issue was directly and substantially in considerations under former proceedings, (b) between the same parties or parties litigating under the title, claim under them before a competent court to try the issue, (c) issue has been heard and finally decided under the former proceedings.
20. So far as the condition (a) is concerned, from the plaint allegations of Civil Suit No. 138 of 1994, it is apparent that the said suit was confined only to the elections of the Committee of Management of the institution. The elections of the Committee of Management are required to take place in accordance with the approved scheme of administration and absolutely no dispute or controversy has been raised in the said suit by Sri Bharat Singh with regard to membership of Sri Neeraj Yadav, so far as the general body of the society is concerned. In Civil Suit No. 138 of 1994 there was no issue with regard to the membership of Sri Neeraj Yadav so far as the general body of the society is concerned. Reference at this stage may also be made upon the Division Bench judgment of this Court in (1988) 1 UPLBEC 732, whereunder it has been held that the provisions of the Intermediate Education Act and the Societies Registration Act are not overlapping, therefore, the order challenged in the Civil Suit No. 138 of 1994 has confined to elections of 1 the Committee of Management, which were being held by the office bearers 1 of the society. It cannot be said that on the question of Sri Neeraj Yadav, being a member of the general body of the society, was directly or substantially in issue in the said suit.
21. So far as the condition (b) is concerned, the former proceedings before a Court, competent to try the said suit, being Civil Suit No. 138 of 1994 is not in dispute.
22. So far as the condition (c) is concerned, from the findings recorded by the civil court in respect of issue No. 11 quoted hereinabove, it cannot be said that the' civil court has finally decided the issue of membership of Sri Neeraj Yadav vis-a-vis the general body of the society. The finding recorded by the prescribed authority is confined to the extent that on the date the said suit was filed, Sri Neeraj Yadav was not a Member/Manager of the Committee of Management of the institution. The date of filing of the said suit is the year 1994. The said finding cannot be held to be binding on the principle of res judicata in respect of the elections of the office bearers of the society, which have taken place in the year 2003, or that Sri Neeraj Yadav was not a member of the general body of the society.
23. From the judgment of the civil court dated 26th September, 2003, passed in Civil Suit No. 138 of 1994, it is apparently clear that the said suit has been dismissed on the ground that no cause of action has arisen for the plaintiff to file the said suit. Once the said suit itself has been dismissed on the ground of lack of cause of action, the civil court could not have proceeded to adjudicate upon the issue with regards to the membership of Sri Neeraj Yadav nor any finding recorded thereafter in the' facts of the case can be said to operate as res Judicata. It is accordingly, held that the findings recorded by the civil court in respect of issue No. 11, in Civil Suit No. 138 of 1994, vide judgment and order dated 26th September, 1994 will not operate as res judicata, so far as the membership of Sri Neeraj Yadav of the general body of the society is concerned. The view taken above finds support from the law laid down by the Hon'ble Supreme Court in the judgment in Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy, 1970 (1) SCC 613 and Sobhag Singh v. Jai Singh, AIR 1968 SC 1328.
Decision on Issue No. (II)
24. From the facts, which have been noticed hereinabove, it is apparently clear that the list of office bearers in which Sri Ajant Singh was elected as President of the society has been registered under Section 4 of the Societies Registration Act since 1994 by the Deputy Registrar. It is further apparent that the elections of the office bearers of the society took place within time after expiry of the term of the earlier Committee of Management in the years 1997 and 2000 thereafter. In the circumstances the elections, which have been set up by the petitioner-office bearers dated 18th July, 2003, cannot be said to be held by rank outsider so as to be ignored by the Deputy Registrar.
25. On the other hand Sri Bharat Singh has not pleaded any independent election subsequent to his having been elected as Manager for the remaining term of the Committee of Management in pursuance of the elections, which had taken place in the year 1991. In paragraphs 9 to 14 of the counter-affidavit filed by Sri Bharat Singh reference has only been made to the elections held by the petitioners dated 6th February, 1994 and 20th July, 1997. There is absolutely no pleadings of Sri Bharat Singh Yadav in respect of his elections having been held nor any list of office bearers submitted in pursuance thereof has been submitted before the Deputy Registrar. It is thus, clear that Sri Bharat Singh has set up the elections for the first time dated 30th June, 2003, after a gap of nearly nine years. There is also a serious dispute as to whether, (a) in the facts of the case fresh elections as set up by Sri Bharat Singh were held or not, (b) as to whether Sri Bharat Singh had been competent to hold any fresh elections on 30th June, 2003 or not and (c) further elections, if any, set up by Sri Bharat Singh having been held strictly in accordance with the' registered bye-laws of the society or not. From order passed by the Deputy Registrar except for noticing the findings of the civil court with regard to the membership of Sri Neeraj Yadav, no other findings whatsoever have been recorded with regard to the legality or otherwise of the elections pleaded by Sri Bharat Singh.
26. In the opinion of the Court in the facts and circumstances of the case it is established that there is a bona fide dispute in respect of the two rival elections of the office bearers of the society and the Deputy Registrar could not have decided the same on his own. The Deputy Registrar was under legal obligations, who has referred the said dispute for adjudication under Section 25 (1) of| the Societies Registration Act as has been repeatedly held by this Court in the judgment in Committee of Management v. Secretary, Arya Kanya Inter College, (1999) 2 UPLBEC 77 and Sitaram Rai and Ors. v. Additional ' Registrar. Firm, Societies and Chits, Gorakhpur Division, Gorakhpur and Ors., 2003 (5) AWC 4159 : 2003 (3) ESC 1617 (All). The relevant portion of the judgment in the case of Sita Ram Rai read as follows:
'The election disputes, if any, including validity of members entitled to vote can only be decided under Section 25(1) by the prescribed authority and that any person aggrieved thereafter has a right to approach civil court.'
27. The order passed by the Deputy Registrar, Firms, Societies and Chits, Agra, U. P., is wholly without jurisdiction. The dispute with regard to the two rival elections set up by the parties must necessarily be referred by the Deputy Registrar to the prescribed authority within one month from the date a certified copy of this order is filed before him. It is further provided that the prescribed authority shall proceed to decide the dispute so referred at the earliest possible after affording opportunity of hearing to the parties and after permitting the exchange of documents within a period of three months from the date of such reference.
28. In view of the findings recorded hereinabove, it is apparently clear that the impugned order of the Deputy Registrar dated 19th November, 2003, is without jurisdiction and cannot be sustained and is hereby quashed, a writ of mandamus is issued the Deputy Registrar, Firms, Societies and Chits, Agra, U. P., is directed to refer the dispute for adjudication to the Prescribed Authority under Section 25(1) of the Societies Registration Act within one month from the date a certified copy of this order is produced before him.
29. Subject to the observations made hereinabove, the present writ petition is allowed.