# Maharashtra Shikshan Mandal Jhansi & Anr v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 99
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-10
- **Case number:** Writ-C No. 46652 of 2012
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maharashtra-shikshan-mandal-jhansi-anr-v-state-of-u-p-ors-43425
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.-19(i)(c)-
Inclusion of 7 persons-as member of
society-by Assistant Registrar-illegibility
to become member-immaterial-unless
voluntarily
accepted
as
member-by
managing committee-otherwise would
be thrust upon society-however the
electoral roll/membership controversy
can not be challenged prior election -
only course upon to file civil suit when
election over.
Held: Para-28
In view of the aforesaid facts and
circumstances, the impugned order of
the
Assistant
Registrar
is
patently
without jurisdiction and amounts to
compelling
the
Society
to
make
members against its wishes or the
wishes of those members who have
formed the Society or are running it
which is not legally permissible.
Case Law discussed:
(1997) 3 SCC 681; 1971 (1) SCC 678; 2010
(10) ADJ 84 (DB); (1995) 2 UPLBEC 1242;
2013 (10) ADJ 446; 2013 (10) ADJ 532.

## Text

1 All. Maharashtra Shikshan Mandal Jhansi & Anr. Vs. State of U.P. & Ors.
99
though they were not the retrenched
employees.
24.
The petitioners have contended
that their right had accrued in the past in
their favour and as such, they were
entitled for absorption according to their
status but as indicated above at no point
of time the petitioners were given any
certificate to indicate that they were the
retrenched
employees
contrary
their
engagement was purely temporary in
nature and was liable to be terminated at
any time without any prior information.
The petitioners are claiming that they may
be absorbed according to their status
whereas the writ jurisdiction is meant to
enforce the rule of law and not to violate
the law. Once the State Government had
framed the Rules of 1991, which was
eventually rescinded by means of Rules of
2003
and
admittedly
the
case
of
petitioners did not fall under the category
of retrenched employees, no directive can
be issued in violation to the Rules merely
because some incumbents have been
offered appointment, under the cover of
the orders passed by this Court will not
improve the case of the petitioners as two
wrongs will not make a thing right, and
equality in illegality, is totally against the
rule of fair play and demand of
petitioners, if accepted would be clearly
violative of Articles 14 and 21 of
Constitution of India.
25. Consequently we cannot grant
any relief and reprieve to the petitioners.
26. For the aforesaid reasons, the
writ petition is dismissed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
Writ-C No. 46652 of 2012
Maharashtra Shikshan Mandal Jhansi &
Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
G.K. Singh, G.K. Malviya
Counsel for the Respondents:
C.S.C., Aklank Jain
Constitution
of
India,
Art.-19(i)(c)-
Inclusion of 7 persons-as member of
society-by Assistant Registrar-illegibility
to become member-immaterial-unless
voluntarily
accepted
as
member-by
managing committee-otherwise would
be thrust upon society-however the
electoral roll/membership controversy
can not be challenged prior election -
only course upon to file civil suit when
election over.
Held: Para-28
In view of the aforesaid facts and
circumstances, the impugned order of
the
Assistant
Registrar
is
patently
without jurisdiction and amounts to
compelling
the
Society
to
make
members against its wishes or the
wishes of those members who have
formed the Society or are running it
which is not legally permissible.
Case Law discussed:
(1997) 3 SCC 681; 1971 (1) SCC 678; 2010
(10) ADJ 84 (DB); (1995) 2 UPLBEC 1242;
2013 (10) ADJ 446; 2013 (10) ADJ 532.
(Delivered by Hon'ble Pankaj Mithal, J.)
1. The dispute in this writ petition is
with regard to membership of the Society
Maharashtra Shikshan Mandal Jhansi
which is registered under the Societies
100
 INDIAN LAW REPORTS ALLAHABAD SERIES
Registration
Act,
1860
(hereinafter
referred to as the 'Act').
2. The petitioner society through its
Secretary and its Secretary have jointly
preferred this writ petition challenging the
order dated 30.6.2012 (anneuxre 12 to the
writ petition) passed by the Assistant
Registrar, Firms Societies and Chits and
the consequential order dated 29.8.2012
passed by the District Inspector of
Schools (in short DIOS) annexure 13 to
the writ petition.
3. In short, the dispute is about the 7
persons (Respondents no. 4 to 10) who
have been directed to be included in the
list of members of the Society by the
Assistant Registrar even though the
membership of these 7 members and 8
others was never accepted by the Society.
4. The society is registered and is
having its own bye-laws. The bye-laws
provide for ordinary membership to
Marathi knowing persons aged above 18
years, if they pay Rs. 2/- only annually.
Any such person who pays Rs. 101/-or
more would be the life member of the
society. In other words, a Marathi
knowing person of 18 years and paying
Rs. 101/- and more would be the life
member of the Society.
5.
Some of the life members of the
society died and there were large vacancies.
Therefore, the society decided to enrol new
members. The applications were invited
between 8.3.2010 to 18.3.2001. About 37
applications
were
received.
The
said
applications
were
placed
before
the
Managing Committee of the Society in its
meeting held on 22.3.2011. The Managing
Committee resolved that the ordinary
membership should not be allowed to
unmarried boys and girls who are not earning
and that it should be open to persons who are
graduates but no final decision on the
applications so received was taken and the
matter was referred to the general body of the
Society. The Society in its meeting held on
22.4.23011 considered all the 37 applications
received for the membership and decided to
accept the membership of only 22 persons
and no resolution was passed in respect of
the remaining 15 applicants. These 15
applicants made a complaint before the
Assistant Registrar who without interfering
with the decision of the Society passed an
order on 18.2.2012 that as the term of the
Managing Committee of the society is over
fresh elections of its office bearers be held
under Section 25 (2) of the Act and
appointed DIOS, Jhansi for the purpose.
6. The Assistant Registrar vide letter
dated 27.3.2012 addressed to the DIOS
sent a list of 89 members of the Society.
The said list included 7 persons whose
applications for membership were not
accepted by the Society along with 8
other applicants.
7. The DIOS in response to it sent a
letter dated 11.5.2012 to the Assistant
Registrar informing him that the names of
the above 7 persons have not been
accepted by the Society, they are not in
the list and their drafts of membership fee
have already been returned by the
Society. The Assistant Registrar on
receiving the above letter of the DIOS
passed an order dated 21.5.2012 directing
him to hold the elections of the society on
the
basis
of
the
list
of
89
persons/members as submitted by him.
8. The above order of the Assistant
Registrar dated 21.5.2012 and the letter
dated 27.3.2012 were challenged by the
1 All. Maharashtra Shikshan Mandal Jhansi & Anr. Vs. State of U.P. & Ors.
101
petitioners by filing writ petition no.
28022 of 2012. The writ petition was
allowed by the High Court vide judgment
and order dated 30.5.2012 and the order
of the Assistant Registrar dated 21st May
2012 was quashed. He was directed to
decide about the legality of the enrolment
of the disputed 7 persons as members of
the Society in the light of the objections
of the DIOS contained in his letter dated
11.5.2012.
9. It is in pursuance of the above
order of the High Court that the Assistant
Registrar has passed the impugned order
dated 30.6.2012. He has held that as all
the 37 applicants were eligible for the
membership of the Society, they all are
entitle to be enrolled as members and
their applications were not liable to be
rejected and thus issued directions to give
membership to all of them.
10. I have heard Sri G.K. Singh, Senior
counsel assisted by Sri G.K. Malaviya,
learned counsel for the petitioners, learned
Standing counsel for respondents no. 1 to 3
and Sri H.N. Singh, Senior counsel assisted
by Sri Aklank Jain, learned counsel for
respondents no. 4 to 10.
11. The main plank of the argument of
learned counsel for the petitioners is that the
membership can not be thrust upon the
Society. The Society can not be compelled to
make all persons who are eligible and have
applied for membership, the members of the
Society. The Assistant Registrar has no
authority of law under the Act to pass an
order
directing
the
Society
to
give
membership to those who have not been
accepted as members by the Society.
12. Sri H.N.Singh on the other hand
contends that the order impugned has
been passed pursuant to the directions of
the Court. The aforesaid 7 persons fulfils
all the requisite qualifications for the
membership of the Society as laid down
under the bye-laws. Any resolution of the
Managing Committee laying down any
further condition restricting membership
is not valid. The Society has acted in an
arbitrary and discriminatory manner in
accepting the membership of few persons
and rejecting that of others including the
aforesaid
7
persons.
The
Assistant
Registrar is competent to decide about the
dispute of membership of the Society.
13.
The bye-laws of the Society are
annexure 1 to the petition. They provide that
any Marathi knowing person aged 18 years
and above and paying Rs. 2 annually can be
enrolled as ordinary member of the Society
and that any such person who pays Rs. 101/-
and more would be enrolled as a life
member. The aforesaid bye-laws have not
been amended. It is not in dispute that in
pursuance of resolution of the Society
inviting applications for enrolment of new
members, only 37 applications were received
in time and out of the said 37 applications,
only 22 were accepted in the meeting dated
22.4.2011. There was no resolution or any
decision to accept the other 15 applications
including 7 in dispute as members of the
Society. No other resolution of the Society is
on record which may establish that the
applications of the said 7 persons were
accepted to enrol them as members of the
Society.
14. The right to form Associations
guaranteed under Article 19 (1) (c) of the
Constitution of India though fundamental
but does not inheres in a person a right to
become a member of any Association in
existence by force or against the wishes of
its existing members. Thus, no person has
102
 INDIAN LAW REPORTS ALLAHABAD SERIES
any vested or a fundamental right to
become a member of a Society merely for
the reason that he fulfils the eligibility
conditions unless he is accepted to be a
member by the Society itself.
15. In State of U.P. And another Vs.
C.O.D. Chheoki Employees Cooperative
Society Limited and others (1997) 3 SCC
681 it has been held that no citizen has a
fundamental right under Article 19 (1) (c)
of the Constitution to become a member
of a co-operative Society even on
fulfilment of the qualifications prescribed
to become a member unless he is admitted
to the membership.
16. The ratio of the above decision
is that mere eligibility is not sufficient to
become a member of a Society or
Association unless a person is admitted to
the
membership
by
the
Association/Society
in
a
voluntary
manner.
17.
In Smt. Damyanti Naranga Vs.
Union of India and others 1971 (1) SCC 678
the Constitution Bench of 5 Judges while
considering the right of the citizens to form
association or Union under Article 19 (1) (c)
of the Constitution held that freedom of
association includes right to associate with
persons of one's choice. It was held that right
to form an association, in the opinion of the
Court necessarily implies that the persons
who form the association have also the right
to continue to be associated with only those,
whom they voluntarily admit in the
association.
18. In view of the above legal
position no person even if he is eligible
and qualified to be member of a Society
has any right to be admitted as member
until and unless the persons forming the
association
or
running
the
same
voluntarily accepts him to be a member.
The aforesaid 7 persons have not been
accepted to be members of the Society by
its Managing Committee or the general
body. Thus, they can not be thrust upon
the Society as members.
19. The second aspect which
requires consideration is if the Assistant
Registrar is competent to direct the
Society to give membership to the above
7 persons or not.
20. Sri H.N. Singh in this connection
has placed reliance upon the Division Bench
decision of this Court in case of Jamia
Razjviya
Merajul
Uloom,
Chilmapur,
Gorakhpur and another Vs. State of U.P. and
others 2010 (10) ADJ 84 (DB). It is a case
relating
to
the
powers
of
the
Registrar/Assistant Registrar in relation to
the elections of the Managing committee of
the Society. The Court held that as the matter
before the Registrar/Assistant Registrar is
only in connection with membership, the
dispute in that regard is not referable under
Section 25 of the Act to the prescribed
authority rather could be decided by the
Registrar/Assistant Registrar himself in
exercise of powers vested under Section 4 of
the Act. The Court relying upon a previous
decision of the Committee of Management,
Kisan Shiksha Sadan, Banksahi, District
Basti and another Vs. Assistant Registrar,
Firms Societies and chits, Gorakhpur
Region, Gorakhpur and another (1995) 2
UPLBEC 1242 held that the ratio of the
aforesaid judgment is that where there is a
dispute of membership of person to a
Society,
even
the
Registrar/Assistant
Registrar who maintains the list of members
under Section 4 of the Act can apply his
mind to the facts of the case and declare if
the person is a valid member or not.
1 All. Maharashtra Shikshan Mandal Jhansi & Anr. Vs. State of U.P. & Ors.
103
21. The aforesaid decision lays
down that under Section 4 of the Act as
the Registrar/Assistant Registrar is vested
with the power to maintain the list of
members of the Society, in case any
dispute of membership is raised before
him, he can rule if a person is a valid
member of the Society or not.
22.
The aforesaid decision is not a
decision
on
the
point
that
the
Registrar/Assistant Registrar is competent
and have any authority in law to issue
directions to the Society to give membership
to any person. His powers are confined only
with regard to adjudication of the validity of
the membership.
23. In the instant case, the validity of
the members of the Society was not in
dispute rather the complaint was that the 7
persons were arbitrarily left out from
being enrolled as members of the Society.
24. The order of the High Court dated
30.5.2012 passed in Writ Petition No.
28022 of 2012 also does not confer any
power
upon
the
Registrar/Assistant
Registrar to decide if the said 7 persons are
entitled to be enrolled as members. It only
directs to adjudicate about the validity of the
members of the Society. In deciding the
validity of the membership, the Assistant
Registrar was not possessed of any power to
rule about the persons who were never
accepted as members. He could have only
decided if the existing members have been
legally enrolled or if any of the them has
been illegally thrown out.
25. In Tej Pal Singh and others Vs.
State of U.P. And others 2013 (10) ADJ
446 his Lordship of this Court seized of a
similar controversy observed that the
authorities can not thrust upon the Society
new members against their wishes as it
would clearly be an infringement of the
right possessed by the existing members
to enrol new members.
26.

The
Registrar/Assistant
Registrar has no jurisdiction under law or
even under Section 4 of the Act to direct
for inducting any person as a member
who has not been accepted by the Society
for any reason even though may be
qualified.
27. It was not the grievance of the
respondents that membership was granted
to them but they were ousted in an illegal
manner. The membership of other persons
who were enrolled was not in question.
28. In view of the aforesaid facts and
circumstances, the impugned order of the
Assistant Registrar is patently without
jurisdiction and amounts to compelling the
Society to make members against its wishes
or the wishes of those members who have
formed the Society or are running it which is
not legally permissible.
29. In Committee of Management
Maharanapratap
Vidyalaya
Prabandh
Samiti Bhadwara, Kanpur and another Vs.
State of U.P. And others 2013 (10) ADJ
532 a division Bench of this court
considering
the
general
propositions
relating to the elections, in context with
the elections of the Committee of
Management of educational institutions
held that any grievance with regard to
electoral roll could be considered after the
elections are held in accordance with law
or by filing civil suit.
30. The ratio of the above decision
is that a dispute of membership/electoral
roll of any organization is not open to
104
 INDIAN LAW REPORTS ALLAHABAD SERIES
challenge before the elections and if
necessary, could be challenged after the
elections are over or by filing a civil suit.
The 7 persons who have been denied
membership of the Society could have
taken recourse to the civil suit but the
Assistant
Registrar
could
not
have
usurped the jurisdiction to direct the
Society for giving membership to them.
Such a direction is even contrary to the
bye laws of the Society.
31. In view of the above facts and
circumstances, the impugned order dated
30.6.2012
passed
by
the
Assistant
registrar is held to be without jurisdiction
and is quashed. The consequential order
of the DIOS dated 29.8.2012 also falls to
the ground.
32. The writ petition stands allowed
with no orders as to costs.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2015
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
Writ-A No. 53525 of 2011
Gram Shiksha Samiti Primary School
Sant Kabir Nagar& Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Anuj Kumar, Tripathi B.G. Bhai
Counsel for the Respondents:
C.S.C., Anand P. Pandey, K.S. Shukla,
M.D. Mishra, Rajendra Kumar Pandey
Constitution of India, Art.-226-payment
of salary-engagement of Shiksha Mitradiscontinued by resolution of Gram
Shiksha Samit-after appraisal of his
performance-direction
of
District
Magistrate
contrary
to
that-held-not
sustainable-unless-resolution of Samit
challenge-order impugned by D.M. Heldwithout jurisdiction.
Held: Para-10
Unless the aforesaid resolution dated
19.5.2007 is set aside by a competent
court, it was not open for the District
Magistrate to pass the impugned order
directing for payment of honorarium to
the respondent no.5 and renewal of her
contract of Shiksha Mitra. Thus the
impugned order dated 24.6.2011 passed
by District Magistrate, Sant Kabir Nagar
is
arbitrary,
illegal
and
without
jurisdiction and, therefore, deserves to
be set aside.
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)
1. Heard Smt. Anita Tripathi, learned
counsel for the petitioners, Sri H.C. Pathak,
learned standing counsel for respondent
no.1 and 3 and Sri M.D. Misra, learned
counsel for respondent no.5.
2. No one appears for respondent
nos.2 and 4.
3. This writ petition has been filed
by the Gram Shiksha Samiti praying to
quash the order dated 24.6.2011 passed by
District Magistrate, Sant Kabir Nagar
directing for payment of honorarium to
the respondent no.5.
4. Submission of learned counsel for
the petitioner is that by unanimous
resolution
dated
19.5.2007
the
engagement of respondent no.5 (Shiksha
Mitra) was cancelled after following due
procedure as provided in clause 9 of the
Government Order No. 2604/15-5-99-