Madarsa Arabiya Noorul Olum Gaderua and ors. Vs. State of U.P. and ors. - Court Judgment

Rakesh Tiwari, J.

1. Heard Sri Somesh Khare, learned Counsel for the petitioners, the learned Standing Counsel for respondent Nos. 1 and 2 and Sri Faheem Ahmad, learned Counsel for respondent No. 3. Perused the record.

2. The petitioners have challenged the impugned order dated 15.12.2008 passed by respondent. No. 2, Assistant Registrar, Firms, Societies and Chits, Azmagarh on the ground that the impugned order aforesaid is illegal and arbitrary having passed on speculation and presumption without noticing the facts taken by them in their objection as well as the objections dated 17.3.2008 filed by respondent No. 3 which clearly admit the fact that Sri Inayatullah had already resigned and the charge was given to President Sri Ramzan.

3. The impugned order is also challenged on the ground that respondent No. 2 has illegally proceeded to decide the dispute of committee of management elected by the members of the society under Section 25(1) of the Societies Registration Act, 1860 (in short the Act) which was without Jurisdiction and such dispute of committee of management could only be decided under the provisions of Section 25(1) of the Act.

4. The relief claimed by the petitioners is for issuance of a writ, order or direction in the nature of certiorari for quashing the impugned order dated 15.12.2008 passed by respondent No. 2, the Assistant Registrar, Firms, Societies and Chits, Azamgarh and for issuance of writ of mandamus commanding respondent No. 2 not to interfere in the functioning of the committee of management headed by petitioner No. 2, Sri Mukhtar Ahmad son of late Abdul Gaffoor, resident of village and post Gaderua, District Azamgarh as President of Madarsa Arabiya Noorul Olum Gaderua, District Azamgarh.

5. The facts of the case are that Madarsa Arabiya Noorul Olum Gaderua, Azamgarh is a society registered under the Societies Registration Act, 1860. Sri Mukhtar Ahmad, petitioner No. 2 claims himself to be the Nazim, i.e., Manager of the society and petitioner No. 3 claims himself to be the Sadar, i.e., President of the society. According to the bye-laws of the society, the term of the committee of management is 5 years and comprises of 9 office bearers, i.e., Sadar/President, Nayab Sadar/Vice-President, Nazim/Manager, Nayab Nazim/Deputy Manager, Khajanchi/Treasurer, Auditor and two members.

6. The society was registered under the Societies Registration Act, 1860 on 28.4.1992 and is said to have been renewed from time to time and its office bearers were also approved by respondent No. 2.

7. It appears that a dispute arose on account of submission of another list of committee of management allegedly is said to have been elected by the members of the society wherein one Sri Imtiyaz Ahmad son of Sri Inayatullah claimed himself to be its Manager. The objections alongwith an affidavit dated 17.5.2008 are said to have been filed by the then President by Sri Mohd. Ramzan against the aforesaid list of office bearers of the committee of management submitted for approval showing Sri Imtiyaz Ahmad son of Sri Inayatullah as elected Manager.

8. The society runs an academic institution Madarsa Arabiya Noorul Olum in village Gaderua in District Azamgarh. It is alleged that there was some dispute of committee of management and under the pressure of the people of the locality the rival factions of the two committees of management agreed to hold the meeting for resolution of dispute in the larger interest of the Madarsa. Pursuant to thereof the compromise is alleged to have been arrived at and a new committee of management was elected. Thereafter meeting of the society was held on 27.1.2006.

9. It is claimed that in order to facilitate formation of new committee of management by consensus the erstwhile Manager Sri Haji Inayatullah tendered his resignation on 18.10.2006 from his office as Manager and one Sri Imtiyaz Ahmad also relinquished his rival claim of being the Manager. It is stated that newly elected committee of management was headed by petitioner No. 3 as its President and petitioner No. 2 as its Manager. The list of office bearers of the aforesaid newly formed committee of management was submitted before respondent No. 2 and was approved.

10. It is urged by Sri Somesh Khare, learned Counsel for the petitioners that respondent No. 3 made some objections in writing before respondent No. 2 vide application dated 17.3.2008 and thereupon respondent No. 2 initiated an enquiry for deciding validity of the committee of management already approved by him vide order dated 19.10.2006. Thereafter the Assistant Registrar, Firms, Societies and Chits, Azamgarh by the impugned order dated 15.12.2008 cancelled the list of office bearers of the committee of management so approved by him inspite of insufficient evidence and further ordered to renew the committee of management which was in office earlier or prior to the said compromise entered into between the two rival factions, after directing the office bearers of the earlier committee of management to fulfil the formalities under Section 3A of the Act.

11. He submits that the word 'or' is to be read as 'and' between the word 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 officebearer of such society, and may pass such orders in respect thereof as it deems fit....'

12. It is stated that in ordinary usage, 'and' is conjunctive and 'or' is disjunctive but to carry on the intention of Legislature it may be necessary to read 'and' in place of conjunction 'or' and vice-versa. In my opinion, this is not so in the instant case as from the plain reading of the section it is clear that as the word is normally disjunctive and has been used in the context of two modes of reference. The interpretation given by Sri Khare is not correct as in certain extraordinary context that the word 'or' can be read as 'and' as has been held in : (1981) 1 SCR 1083. The rule of ejusdem generis is to be applied where general words have been used following particular and specific words of the same nature, therefore, its interpretation would depend upon the context or may be read as 'and' but the Court would not do it unless it is obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or' as has been held in : AIR 1984 SC 684/708.

13. On the basis of the above averments Sri Somesh Khare, learned Counsel for the petitioner has concluded that the word 'or' used in the said Section is conjunctive and not disjunctive. He submits that in ordinary usage 'and' is conjunctive and 'or' is disjunctive but in Section 25 of the Act the word 'or' is to be read as 'and' so as to give full effect to the intention of the Legislature regarding dispute of election.

14. Sri Faheem Ahmad, learned Counsel for the respondents submits that from perusal of paragraph 8 of the writ petition as well as Annexure-2 to the writ petition it is clear that neither the names of the petitioners were found in the list of office bearers as Manager/Secretary or as a President of the aforesaid Madarsa and that it is apparent from the record as well as list of the year 2006-07 that Mohd. Ramzan and Mohd. Inayatullah were the President and Secretary of the society respectively and were discharging the function of the said post from the date of registration of the society and its bye-laws dated 20.12.1994.

15. It is denied by the learned Counsel for the respondents that Mohd. Inayatullah had ever resigned from the post of Secretary and Notary affidavit filed in his name is a forged one. In this regard it is stated that Notary Stamp paper was purchased in the name of Sajjad on 23.9.2005 whereas the signatures of Haji Inayatullah on it are different. In this backdrop the authority has come to the conclusion that the earlier order dated 19.10.2006 has been obtained by the petitioners by playing fraud so as to out the committee of management in office and that to keep the matter away from such fraud etc. that the Assistant Registrar, Firms Societies and Chits had implied the condition quoted hereinafter in the order dated 19.10.2006 and are to the effect that if any complaint is received by the office bearers of the petitioners/members of the society in existence prior to the said compromise, the registration of the order may be cancelled or recalled after hearing the parties. It was in this context that the Assistant Registrar, Firms, Societies and Chits passed the impugned order challenged in this writ petition. Paragraph 20 of the conditional order passed by the Assistant Registrar is as under:

d`i;k vkids }kjk izLrqr izcU/k lfefr dh lwph lqygukes ds vk/kkj ij o'kZ 2006&07 vkt fnukad 19-10-2006 dks iathd`r dj yh x;h gS fdUrq bl 'krZ ds lkFk vkns'k ikfjr fd;k x;k gS fd orZeku esa HkwriwoZ inkf/kdkjh;ks@lnL;ks }kjk dksbZ vkifRr izLrqr dh tkrh gS rks lwpuh fujLr dj nh tk;sxh A

16. It is urged that on the basis of forged and fabricated compromise the impugned order was obtained by the petitioners for registration of the office bearers and when this fact came into the knowledge of the legally elected members of the society as well as members of the general body, then about 30 members of the office bearers of the committee of management submitted notary affidavit(s) before the Assistant Registrar that the order was obtained by the petitioners on the basis of misrepresentation and submission of forged records and does not contain signatures of the said out-going office bearers/members as such the order registering the list of office bearers of the society be recalled and the list of the office bearers of the society be directed to be registered.

17. It is submitted by the learned Counsel for the respondents that several judgments have been passed by the High Court laying down proposition of law that the Assistant Registrar, Firms Societies and Chits can look into the question whether the list submitted by the so-called office bearers of the society is to be registered in accordance with law or not. He has placed reliance upon paragraphs 3,4,6 and 8 of the judgments rendered by the Division Bench of this Court comprising of Hon. Mr. Justice Ajoy Nath Ray, C.J. and Hon. Mr. Justice Ashok Bhushan, J. in (Committee of Management Rashtriya Junior High School Society), Babhaniyaon, Jaunpur v. Assistant Registrar, Firms, Societies and Chits, Varanasi Region and Ors. : 2006 (1) AWC 593, wherein the judgment of learned single Judge has been confirmed.

18. In the aforesaid case, the Court has held that the question as to whether the Assistant Registrar was justified in withdrawing the renewal of registration on ground that claim of claimant/appellant appeared to be fictitious? Answering the question the Court has held that 'yes' the Assistant Registrar has implied power to do so and the dispute as to election for reference under Section 25 (1) of the Societies Registration Act is a bona fide dispute only which can be referred.

19. After hearing learned Counsel for the parties and on perusal of the record and the case laws cited I am of the opinion that in the order dated 13.12.2008 the Assistant Registrar has given a detailed findings based on cogent reasons regarding the affidavit given by 30 office bearers/members of the society out of 56 members, who had complained that the list of office bearers submitted by the petitioners is forged and fictitious, therefore, there was sufficient material/evidence before him to initiate proceedings for cancellation of registration of the list of the office bearers submitted by the petitioners. It is not in the interest of justice to interfere in findings of facts recorded by the authority below such matters under Article 226 of the Constitution of India inasmuch as whether the list of office bearers alongwith notary affidavit submitted by the petitioners are forged or not can be decided only in suit proceedings where disputed questions of facts can be adjudicated on the basis of evidence adduced by the parties.

20. Section 4 of the Societies Registration Act, 1860 may also be made here which provides for filing a list with the Registrar of Joint-Stock Companies, of the names, addresses and occupations of the governors, council, directors, committee or other governing body then entrusted with the management of the affairs of the society.

21. The amendment in the aforesaid Section 4 of the Act in Uttar Pradesh provides:.(iii) in Sub-section (1), insert the following proviso, namely:Provided that if the managing body is elected after the last submission of the list, the counter signatures of the old members, shall, as far as possible, be obtained on the list. If the old office bearers do not countersign the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period.

22. Admittedly, the list of the office bearers has to be signed by the ex-office bearers of the committee of management which was not done in this case. The petitioners claim that their new committee of management was elected on the basis of compromise, which is said to be farji' by the respondents, and a finding to this effect has also been recorded by the Assistant Registrar. Therefore, basically the dispute, in my considered opinion, is not regarding election but is regarding list of office bearers of the society submitted by the petitioners which is also apparent from paragraph 8 of the writ petition wherein it has been held that:

8. That, however, the dispute arose on account of submission of another list of committee of management allegedly elected by the members of the society wherein one Sri Imtiyaz Ahmad son of Sri Inayatullah was shown to be its Manager.

23. From aforesaid paragraph 8 it is evident that question of dispute of rival committee of management is not there for being challenged but another list submitted by respondents.

24. When Section 4 of the Act provides for registration of the office bearers of the committee of management it means validly elected committee of management in accordance with law. A committee of management is to continue for a period of 5 years or as provided in the bye-laws and is not elected every year. It is only the list which is to be submitted annually by the said validly elected committee of management showing change if any in the list of office bearers registered earlier. The change may be due to death or resignation etc. of an office bearer or due to any other such reason. This list is to be registered annually in accordance with the provisions contained in Section 4 of the Act, which provides for signatures of the members of the office bearers of old committee of management.

25. Admittedly, in the instant case, the petitioners claim themselves to be the President and Manager of the society on the basis of an election said to have been held pursuant to a compromise which was got approved by the petitioners on the basis of forged papers whereas the respondents deny any such compromise.

26. Since the dispute pertains to the registration of list of validly elected office bearers of the society, it may also touch the question of election of the office bearers of the committee of management. If the dispute is confined only to the list then Section 4 comes into play and the Assistant Registrar has the jurisdiction in the matter but if question of election is dominant question then in that case Section 25 (1) of the Act would be attracted.

27. The Courts, therefore, have to be cautious as to what is the predominant dispute as well as the effect of the order passed by the authority. The order impugned in the present writ petition appears to be confined only to the question of validity of list of office bearers, though while deciding the facts the authority may have referred the stand taken by the parties regarding election on the basis of which the parties claim to file their respective lists of office bearers. However, the substantial and dominant question of registration of list of office bearers of the society has been decided by the authority and not the election. Moreover, this does not appear to be a bona fide dispute which ought to have been referred by the authority under Section 25 (1) of the Act. This is also import of the judgment of the Division Bench in Committee of Management, Rashtriya Junior High School Society, : 2006 (1) AWC 593 (supra).

28. Furthermore, proceedings under Section 4 of the Act pertaining to registration of annual list of managing body as well as the proceedings under Section 25 (1) of the Act are summary in nature. Reference of Dispute in respect of election can always be referred by the Assistant Registrar to the Prescribed Authority or by at least 1/4th members of the society registered under the Act, hence, whether any dispute has been decided under Section 4 or under Section 25 (1) of the Act, the order is subject to adjudication in civil court being orders arising out of summary proceedings, where parties can adduce oral and documentary evidence in support of their cases.

29. The Assistant Registrar, Firms Societies and Chits, in the instant case had jurisdiction to pass order of registration of the office bearers of the society as he found that the claim of the petitioner regarding registration of annual list of office bearers submitted by him was forged and fictitious documents of election pursuant to a compromise. Even if that was the case the annual list of office bearers of the petitioners ought to have been submitted after all the office bearers of the alleged society had signed as required under Section 4 of the Act. The petitioner's list of office bearers was registered by the Assistant Registrar conditionally, which impliedly was accepted by the petitioner. He cannot, therefore, claim to have legal right to continue on basis of such conditional registration of list of office bearers, which in fact has been found to be incorrect by the authority. The order impugned passed by the authority appears to be speaking and reasoned order.

30. For all the reasons stated above, this Court is not inclined to interfere in the matter of registration of annual list which is disputed and forgery is said to have been committed by the petitioners for getting the list of office bearers of the committee of management registered, which has been obtained by the erstwhile members of the society. The order impugned in the present writ petition does not call for any interference by this Court under Article 226 of the Constitution of India. The petitioners have an alternative and efficacious remedy against the order impugned.

31. The writ petition is dismissed on the ground of alternative remedy. No order as to costs.