# Commmittee of Management, Darul Ulum Samadhiya & Anr v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Writ-C No. 19080 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commmittee-of-management-darul-ulum-samadhiya-anr-v-state-of-u-p-ors-50319
- **Pages:** 7

## Headnote

C.S.C., Sri Prabhakar Awasthi, Sri Rafeek
Ahmad Khan

A.
Local
Bodies
Law
-
Societies
Registration Act, 1860 - Amendment in
Bye-laws - Validity of meeting dated
25.12.2021
questioned
-
Practice
of
playing fraud alleged - Effect - Assistant
Registrar set aside the list of office bearers
registered at the behest of the petitioners
and also the impugned Bye-laws of the
Society by recording a finding that the same
had been obtained on the basis of fabricated
documents - Legality challenged - Held,
once Kudrat Ullah & ors. had submitted
affidavits to the effect that meetings
including the meeting dated 25.12.2021 had
not actually been held and the signatures of
the persons allegedly present in the meeting
had been fabricated, the Assistant Registrar
was
justified
in
not
only
making
observations with regard to the meeting
dated 25.12.2021 but also regarding the
proceedings held subsequent thereto. (Para
2 and 9)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Facts in the record establish that this
ingenious and illegal method of elections has
been in vogue since 2021, and has enabled
some members of the Board of Management
to continue in the Board without contesting
annual elections for two years. Further there
is no certainty when the said members would
face elections. The system of elections
adopted by the petitioner creates an entitled
class which is entrenched in elected office but
avoids
electoral
contest
and
abjures
accountability of elected representatives. The
legislature assiduously sought to curb this
evil with the promulgation of the Apartment
Act, 2010 read with Model Bye-Laws dated
16th November, 2011 notified thereunder.

34. In the wake of the preceding
narrative failure to hold elections to fill all 10
posts of the Board of Management vitiates
the elections dated 26.02.2022. The elections
dated 26.02.2022 being in contravention of
the Apartment Act, 2010, read with Model
Bye-Laws dated 16th November, 2011
notified thereunder were lawfully set aside by
the impugned order dated 08.02.2023, and
accordingly the direction in the impugned
order dated 08.02.2023 to conduct fresh
elections cannot be faulted.

35. The impugned order dated
14.03.2023 was passed by the Deputy
Registrar, Firms, Societies and Chits, Meerutrespondent No.2 in compliance of direction
and the order of the prescribed authority/Sub
Divisional Magistrate,
Ghaziabad dated
08.02.2023 upheld earlier, and in lawful
exercise of powers under Section 25(2) of the
Societies Registration Act to conduct the
elections of the society. The challenge to the
said order also fails.

36. In the interest of justice this Court
commands the respondents to execute the
following directions:

(I) The respondent No.2-Deputy
Registrar, Firms, Societies and Chits, Meerut
shall hold the elections to fill the 10 posts in
the Board of Management of the society. The
election schedule shall be notified within a
period of 15 days from the date of receipt of a
certified copy of this order, and the elections
shall be conducted in the manner discussed in
the earlier part of the judgement.

(II) The District Administration
shall offer full support in the holding of fair
and peaceful elections of the society.

(III) Elections to the 10 posts in the
Board of Management shall be held annually
in future, and in light of this judgement and in
accordance with the Apartment Act, 2010,
read with Model Bye-Laws dated 16th
November, 2011 notified thereunder.

37. The writ petition is liable to be
dismissed and is dismissed subject to above
observations.

38. Registry is directed to send a
copy of this order to the Deputy
Registrar, Firms, Societies and Chits,
Meerut for compliance.
----------
(2023) 7 ILRA 386
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 19080 of 2023

Commmittee of Management, Darul Ulum
Samadhiya & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Jitendra Kumar Singh, Sri Abhishek
Bhushan, Sri Anil Bhushan (Sr. Advocate)
7 All. C/M, Darul Ulum Samadhiya & Anr. Vs. State of U.P. & Ors.
387
Counsel for the Respondents:
C.S.C., Sri Prabhakar Awasthi, Sri Rafeek
Ahmad Khan

A.
Local
Bodies
Law
-
Societies
Registration Act, 1860 - Amendment in
Bye-laws - Validity of meeting dated
25.12.2021
questioned
-
Practice
of
playing fraud alleged - Effect - Assistant
Registrar set aside the list of office bearers
registered at the behest of the petitioners
and also the impugned Bye-laws of the
Society by recording a finding that the same
had been obtained on the basis of fabricated
documents - Legality challenged - Held,
once Kudrat Ullah & ors. had submitted
affidavits to the effect that meetings
including the meeting dated 25.12.2021 had
not actually been held and the signatures of
the persons allegedly present in the meeting
had been fabricated, the Assistant Registrar
was
justified
in
not
only
making
observations with regard to the meeting
dated 25.12.2021 but also regarding the
proceedings held subsequent thereto. (Para
2 and 9)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Rex Vs Duchess of Kingston; 2 Smith L.C. 687

2. Kinch Vs Walcott; 1929 APPEAL CASES 482

3. Paranjpe Vs Kanade; ILR 6 BOMBAY 148

4. Lakshmi Charan Saha Vs Nur Ali; ILR 38
Calcutta 936

5. Manindra Nath Mittra Vs Hari Mondal; 24
Calcutta Weekly Notes 133

6. Esmile-Ud-Din Biswas & anr. Vs Shajoran
Nessa Bewa & ors.; 132 Indian Cases 897

7. Nemchand Tantia Vs Kishinchand Chellaram
(India) Ltd.; 63 Calcutta Weekly Notes 740

8. S.P. Chengalvaraya Naidu (Dead) by LRs. Vs
Jagannath (Dead) by LRs & Ors.; (1993) Supp.
3 SCR 422
9. Ram Preeti Yadav Vs U.P. Board of High
School and Intermediate Education & ors.;
(2003) Supp. 3 SCR 352

10. St. of A.P. & anr. Vs T. Suryachandra Rao;
(2005) 6 SCC 149

11. Patch Vs Ward; 1867 (3) L.R. Chancery
Appeals 203

12.
Bhaurao
Dagdu
Paralkar
Vs
St.
of
Maharashtra & ors.; 2005 (7) SCC 605

13. Hamza Haji Vs St. of Kerala; JT 2006 (8) SC
215

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Heard Shri Anil Bhushan, learned
Senior Counsel assisted by Shri Jitendra
Kumar Singh, learned counsel for the
petitioners, learned Standing Counsel for
respondent nos.1 and 2 and Shri Prabhakar
Awasthi, learned counsel representing
respondent no.3.

2. The order under challenge in the
present writ petition is dated 10.04.2023
whereby the Assistant Registrar, Firms,
Societies and Chits, Jhansi in furtherance of
directions issued by this Court in Writ C
No.1887 of 2023 (C/M Darul Uloom
Samadia & 2 Ors. v. State of U.P. & 3
Ors.), has set aside the list of office bearers
registered at the behest of the petitioners
and also the impugned Bye-laws of the
Society by recording a finding that the
same had been obtained on the basis of
fabricated documents.

3. The submission of learned Senior
Counsel is to the effect that elections of the
Society were held in the year 2021 from a
Body of seven office bearers and the list
was registered on 25.03.2022, whereafter,
amendments were made in the Bye-laws by
a list of 11 office bearers and the same
388 INDIAN LAW REPORTS ALLAHABAD SERIES
were registered in the office of Assistant
Registrar on 30.12.2022. It is contended
that a complaint was moved by respondent
no.3 and, thereafter, a direction was sought
from this Court for taking a decision on the
complaint and it is in pursuance of the said
complaint and the direction that the order
impugned has been passed. It is further
contended that insofar as, the complaint is
concerned, it was with respect to the
meeting dated 25.12.2021 to the effect that
the said meeting was not held in
accordance with law; that the President of
the Society namely Kudrat Ullah had no
knowledge about the same and that his
signatures were forged in the proceedings.
Various other allegations were also levelled
in the complaint and according to learned
Senior Counsel, the scope of complaint was
limited to examine the validity of meeting
dated 25.12.2021, whereas, the Assistant
Registrar has transgressed his powers and
jurisdiction to go beyond the scope of
complaint and has, infact, reviewed the
earlier decision whereby the list of office
bearers was registered on 25.03.2022 and,
further
proceedings
were
held
on
08.09.2022 and 07.10.2022.

4. As regards the meeting dated
25.12.2021, it has been argued that at that
time, seven members were there, out of
whom, five were present and, therefore, the
quorum being complete, the meeting was
held in accordance with law, and certain
decisions were taken including the decision
of resignation of Vice President and
Manager owing to their sickness and
inability to perform and discharge their
duties. It is further contended that order
impugned has been passed committing
violation of principles of natural justice and
even the documents filed by the contestingrespondents were not provided to the
petitioners.

5. Per contra, Shri Prabhakar
Awasthi, learned counsel for respondent
no.3 has referred to the proceedings of
meeting dated 25.12.2021 as contained in
'Annexure No.17' to the writ petition. He
submits that initial two lines of the said
proceedings clearly disclose that the
meeting was held under the Presidentship
of Kudrat Ullah as President of the Society
but there is no reference of his name in the
entire proceedings, except, that he was
again elected/nominated in the list of office
bearers. It has been shown to the Court that
even the proceedings of the previous
meeting were read over by the Vice
President and Agenda No.2 was also put by
him. It is, therefore, contended that if
Kudrat Ullah as President was present in
the meeting, there was no occasion for Vice
President to conduct the proceedings of the
meeting. It has not been disputed that prior
to
the
meeting
dated
25.12.2021,
Mohammad Anees happened to be Vice
President and his father Noor Mohammad
happened to be Manager, whereas, in the
said
meeting,
these
two
posts/office
bearership were reversed that is to say Noor
Mohammed was elected as Vice President
and Mohammad Anees as Manager.

6. He further submits that on the basis
of
the
said
proceedings,
subsequent
proceedings including making amendment
in the Bye-laws were held and since the
complainants had submitted their affidavits
before the Assistant Registrar to the effect
that even signatures of Kudrat Ullah had
been fabricated and forged in the meeting
dated 25.12.2021, the entire proceedings
were null and void.

7. Learned Standing Counsel has
supported the impugned order by arguing
that once the fraud committed by the
petitioners came to the notice of Assistant
7 All. C/M, Darul Ulum Samadhiya & Anr. Vs. State of U.P. & Ors.
389
Registrar pursuant to the complaint and the
documents
filed
by
the
contesting
respondents, he was justified in setting
aside the entire proceedings in pursuance of
the meeting dated 25.12.2021.

8. Having heard learned counsel for
the parties, I find that the basis of amending
the Bye-laws as well as holding the
subsequent proceedings has its genesis in
the meeting dated 25.12.2021. A bare
perusal of the said document reflects that
apart from the fact that the meeting was
shown to have been held under the
Presidentship of Kudrat Ullah, it was
mentioned that Vice President and Manager
had submitted their resignations owing to
their sickness and inability in discharge of
duties and performance of functions and
their resignations had been accepted in the
meeting. Surprisingly, the persons whose
resignations were accepted were again
nominated in the same meeting but with a
reverse description of office bearership.
The Court expresses its surprise as to when
these persons were not able to perform their
duties as to what persuaded anyone to again
include them in the Committee/Society.

9. Even ignoring the aforesaid aspect,
I find that once Kudrat Ullah and others
had submitted affidavits to the effect that
meetings including the meeting dated
25.12.2021 had not actually been held and
the signatures of the persons allegedly
present in the meeting had been fabricated,
the Assistant Registrar was justified in not
only making observations with regard to
the meeting dated 25.12.2021 but also
regarding the proceedings held subsequent
thereto.

10. It is well settled that fraud vitiates
even the most solemn act. De Grey, C.J., in
Rex Vs. Duchess of Kingston [ 2 Smith
L.C. 687] observed that 'Fraud' is an
intrinsic, collateral act, which vitiates the
most solemn proceedings of courts of
justice. Lord Coke says it avoids all judicial
acts ecclesiastical and temporal".

12. In Kerr on Fraud and Mistake, it
is stated that "in applying this rule, it
matters
not
whether
the
judgment
impugned has been pronounced by an
inferior or by the highest Court of
judicature in the realm, but in all cases
alike it is competent for every Court,
whether superior or inferior, to treat as a
nullity any judgment which can be clearly
shown to have been obtained by manifest
fraud."

13. It is also clear as indicated in
Kinch Vs. Walcott [1929 APPEAL CASES
482] that it would be in the power of a
party to a decree vitiated by fraud to apply
directly to the Court which pronounced it to
vacate it. According to Kerr, "In order to
sustain an action to impeach a judgment,
actual
fraud
must
be
shown;
mere
constructive fraud is not, at all events after
long delay, sufficient but such a judgment
will not be set aside upon mere proof that
the judgment was obtained by perjury."

(See the Seventh Edition, Pages 416417)

14. In Corpus Juris Secundum,
Volume
49,
paragraph
265,
it
is
acknowledged that,"Courts of record or of
general jurisdiction have inherent power to
vacate or set aside their own judgements".

In paragraph 269, it is further
stated, "Fraud or collusion in obtaining
judgment is a sufficient ground for opening
or vacating it, even after the term at which
it was rendered, provided the fraud was
390 INDIAN LAW REPORTS ALLAHABAD SERIES
extrinsic and collateral to the matter tried
and not a matter actually or potentially in
issue in the action. "

It is also stated: "Fraud practiced
on the court is always ground for vacating
the judgment, as where the court is
deceived
or
misled
as
to
material
circumstances, or its process is abused,
resulting in the rendition of a judgment
which would not have been given if the
whole conduct of the case had been fair".

15. In American Jurisprudence, 2nd
Edition, Volume 46, paragraph 825, it is
stated, "Indeed, the connection of fraud
with a judgment constitutes one of the chief
causes for interference by a court of equity
with the operation of a judgment. The
power of courts of equity in granting such
relief is inherent, and frequent applications
for equitable relief against judgments on
this ground were made in equity before the
practice of awarding new trials was
introduced into the courts of common law.
Where fraud is involved, it has been held,
in some cases, that a remedy at law by
appeal, error, or certiorari does not
preclude relief in equity from the judgment.
Nor, it has been said, is there any reason
why a judgment obtained by fraud cannot
be the subject of a direct attack by an action
in equity even though the judgment has
been satisfied."

16. The law in India is not different.
In Paranjpe Vs. Kanade [ILR 6 BOMBAY
148], it was held that it is always competent
to any Court to vacate any judgment or
order, if it be proved that such judgment or
order was obtained by manifest fraud. In
Lakshmi Charan Saha Vs. Nur Ali [ILR
38 Calcutta 936], it was held that the
jurisdiction of the Court in trying a suit
questioning the earlier decision as being
vitiated by fraud, was not limited to an
investigation merely as to whether the
plaintiff was prevented from placing his
case properly at the prior trial by the fraud
of the defendant. The Court could and must
rip up the whole matter for determining
whether there had been fraud in the
procurement of the decree.

17. In Manindra Nath Mittra Vs.
Hari Mondal [24 Calcutta Weekly Notes
133], the Court explained the elements to
be proved before a plea of a prior decision
being vitiated by fraud could be upheld.
The Court said-

"with respect to the question as to
what constitutes fraud for which a decree
can be set aside, two propositions appear
to be well established. The first is that
although it is not permitted to show that the
Court (in the former suit) was mistaken, it
may be shown that it was misled, in other
words
where
the
Court
has
been
intentionally misled by the fraud of a party,
and a fraud has been committed upon the
Court with the intention to procure its
judgment, it will vitiate its judgment. The
second is that a decree cannot be set aside
merely on the ground that it has been
procured by perjured evidence".

18. The position was reiterated by the
same High Court in Esmile- Ud-Din
Biswas and Anr. Vs. Shajoran Nessa
Bewa & Ors. [132 INDIAN CASES 897].
It was held that it must be shown that fraud
was practised in relation to the proceedings
in the Court and the decree must be shown
to have been procured by practising fraud
of some sort upon the Court. In Nemchand
Tantia Vs. Kishinchand Chellaram (India)
Ltd. [63 Calcutta Weekly Notes 740], it
was held that a decree can be re-opened by
a new action when the court passing it had
been misled by fraud, but it cannot be re-
7 All. C/M, Darul Ulum Samadhiya & Anr. Vs. State of U.P. & Ors.
391
opened when the Court is simply mistaken;
when the decree was passed by relying on
perjured evidence, it cannot be said that the
court was misled.

19. It is not necessary to multiply
authorities on this question since the matter
has come up for consideration before the
Apex Court on varoius occasions. In S.P.
Chengalvaraya Naidu (Dead) by LRs. Vs.
Jagannath (Dead) by LRs & Ors. [(1993)
Supp. 3 SCR 422], this Court stated that,

"it is the settled proposition of
law that a judgment or decree obtained by
playing fraud on the court is a nullity and
non est in the eyes of law. Such a
judgment/decree --- by the first court or by
the highest court --- has to be treated as a
nullity by every court, whether superior or
inferior. It can be challenged in any court
even in collateral proceedings."

The Court went on to observe that
the High Court in that case was totally in
error when it stated that there was no legal
duty cast upon the plaintiff to come to
Court with a true case and prove it by true
evidence. Their Lordships stated, "The
courts of law are meant for imparting
justice between the parties. One who comes
to the court, must come with clean hands.
We are constrained to say that more often
than not, process of the Court is being
abused. Property grabbers, tax evaders,
Bank loan dodgers, and other unscrupulous
persons from all walks of life find the
court- process a convenient lever to retain
the illegal-gains indefinitely. We have no
hesitation to say that a person, whose case
is based on falsehood, has no right to
approach the Court. He can be summarily
thrown out at any stage of the litigation".

20. In Ram Preeti Yadav Vs. U.P.
Board of High School and Intermediate
Education & Others [(2003) Supp. 3 SCR
352], the Apex Court after quoting the
relevant passage from Lazarus Estates Ltd.
Vs. Beasley [(1956) 1 All ER 341] and
after referring to S.P. Chengalvaraya
Naidu (Dead) by LRs. Vs. Jagannath
(Dead) by LRs & Ors. (supra) reiterated
that fraud avoids all judicial acts. In State
of A.P. & Anr. Vs. T. Suryachandra Rao
[(2005) 6 SCC 149], the Supreme Court
after referring to the earlier decisions held
that suppression of a material document
could also amount to a fraud on the Court.
It also quoted the observations of Lord
Denning in Lazarus Estates Ltd. Vs.
Beasley (supra) that.

"No judgment of a Court, no
order of a minister, can be allowed to stand
if it has been obtained by fraud. Fraud
unravels everything."

21. According to Story's Equity
Jurisprudence, 14th Edn., Volume 1,
paragraph 263: "Fraud indeed, in the sense
of a Court of Equity, properly includes all
acts, omissions, and concealments which
involve a breach of legal or equitable duty,
trust, or confidence, justly reposed, and are
injurious to another, or by which an undue
and unconscientious advantage is taken of
another."

22. In Patch Vs. Ward [1867 (3) L.R.
Chancery Appeals 203], Sir John Rolt, L.J.
held that: "Fraud must be actual positive
fraud,
a
meditated
and
intentional
contrivance to keep the parties and the
Court in ignorance of the real facts of the
case, and obtaining that decree by that
contrivance."

23. The Supreme Court in Bhaurao
Dagdu Paralkar Vs. State of Maharashtra
& Ors. [2005 (7) SCC 605] held that:
392 INDIAN LAW REPORTS ALLAHABAD SERIES

"Suppression
of
a
material
document would also amount to a fraud on
the court.

Although, negligence is not fraud,
it can be evidence of fraud."

24. The aforesaid Authorities have
been considered by the Apex Court in the
case of Hamza Haji v. State of Kerala
reported in JT 2006 (8) SC 215.

25. The Assistant Registrar, though
not a court of law, exercises quasi judicial
or even administrative powers under
Societies Registration Act, 1860, hence the
ratio of law referred to hereinabove shall
also apply to the proceedings giving rise to
the instant writ petition.

26. The submission of learned Senior
Counsel that the Assistant Registrar has
traveled beyond his power and jurisdiction
does not impress the Court in the facts and
circumstances of the case as the scope of
the complaint made by respondent no.3 was
to examine the validity of the meeting
dated
25.12.2021
and,
once,
cogent
reasoning has been assigned and as also
observed by this Court by perusing the said
proceedings that the same were full of
infirmities, I do not find any ground to
interfere in the order impugned.

27. The writ petition lacks merit and
is, accordingly, dismissed.
----------
(2023) 7 ILRA 392
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.
Writ-C No. 24761 of 2003

Smt. Chan Muni ...Petitioner
Versus
Allahabad Development Authority & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri J.P. Pandey

Counsel for the Respondents:
Sri S.K. Dwivedi

Civil Law - Constitution of India, 1950 -
Article 265 - U.P. Urban Planning and
Development Act, 1973 - Section 15(2-A) -
Authority
shall
be
entitled
to
levy
development
fees,
mutation
charges,
stacking fees and water fees- Held:
Development Authority can demand only
external development fees, stacking fees
and water fees at the time of sanctioning
the map and no other fees/charges can be
demanded by the Development Authority.
Levy of other charges which are not
mentioned u/s 15(2-A) of the Act, 1973
are hit by Article 265 of the Constitution
of India. Article 265 clearly prohibits levy
of tax/fees/charges except in accordance
with law and/or as provided under the
statute. Demand notice issued by the
Development Authority so far as it asks the
petitioner to deposit fees and charges other
than external development fees, stacking
fees and water fees, such as permit fee, subdivision charge, inspection fee and open
area penalty quashed (Para 8, 9)

Allowed. (E-5)

List of Cases cited:

1. Mathura Vrindavan Development Authority &
anr. Vs Rajesh Sharma & ors. 2023 SCC OnLine
SC 530

2. Sri Krishna Kant Verma & anr. Vs St. of U.P.
Thru. Secy. Nagar Vikas & ors. (Writ C No. 9617
of 2010) dt 24.05.2023

3. Ravi Agrawal Vs St. of U.P. Thru Secy. & ors.
(Writ C No. 36358 of 2013) dt 4.7.2023