# Managing Committee and another v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 574
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-22
- **Case number:** Civil Misc. Writ Petition No.39253 of 2008
- **Bench:** Devi Prasad Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/managing-committee-and-another-v-state-of-u-p-and-others-41660
- **Pages:** 8

## Headnote

Societies Registration Act 1860-Section
25 (1)-Amendment of bylaws-extending
the
term
of
society-accepted
by
Assistant
Registrar-held-illegal-before
expiry of the admitted term only way to
get fresh election-held-extending the
term
from
3
years
to
5
yearsundemocratic-illegal-District Magistrate
to appoint authorized controller till fresh
election-held.

Held: Para 21

In the present case, keeping in view the
observation made hereinabove, it shall
be appropriate that a fresh election
should be held of the Committee of
Management
in
pursuance
to
the
provisions contained in Sub Section (2)
of Section 25 of the Act on the basis of
membership list as was available in the
year 2004 to run the society in question.
Case law discussed:
[2006(24) LCD 1373], 2004(5)SCC 795, AIR
(39) 1952 SC 6, AIR 1978 SC 851, 1994
Allahabad CJ 162, (2001)8 SCC 509, 1991
Suppl. 2 SCC 36, 1991(2) SCC 412, 2002 Vol.
1 AWC 771, 2003 Vol. 3 AWC 1802.
2 All] Managing Committee and another V. State of U.P. and others
575

## Text

574 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
on the application moved by the State for
waiving the condition of pre-deposit and
also to consider the issue of limitation
before proceeding to entertain the appeal
on merits or the application for interim
protection. The grant of interim order
was, therefore, in the opinion of the
Court,
patently
without
jurisdiction
without there being a competent appeal in
terms of the Statute. The Tribunal, being a
creation under the Statute, therefore,
could not have traveled beyond the
provisions aforesaid.

9. Sri Zafar Naiyer, at this juncture,
urged, that the matter be remanded back
without keeping it pending so that these
issues may be decided at the earliest by
the Tribunal where a very short date has
already been fixed.

10. Having drawn the aforesaid
conclusions, there is no point in keeping
this writ petition pending and, therefore,
the orders impugned dated 11.6.2009 and
1.7.2009 are set aside with a direction to
the Tribunal to proceed to pass orders in
accordance with the provisions of the
Statute as observed herein above and in
accordance with law.

11. It shall be open to the petitioner
to press all the applications that have been
filed relating to the maintainability of the
appeal and the objections thereon on
behalf of the Statute and the Tribunal
shall be obliged to decide the same,
accordingly.

12. The Tribunal shall proceed to
decide the matter without granting any
unnecessary adjournments.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2009

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Civil Misc. Writ Petition No.39253 of 2008

Managing Committee and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Shri Ashok Khare, Senior Counsel
Sri Ismamul Rahman Khan

Counsel for the Respondents:
CSC,
Sri Mahtab Alam

Societies Registration Act 1860-Section
25 (1)-Amendment of bylaws-extending
the
term
of
society-accepted
by
Assistant
Registrar-held-illegal-before
expiry of the admitted term only way to
get fresh election-held-extending the
term
from
3
years
to
5
yearsundemocratic-illegal-District Magistrate
to appoint authorized controller till fresh
election-held.

Held: Para 21

In the present case, keeping in view the
observation made hereinabove, it shall
be appropriate that a fresh election
should be held of the Committee of
Management
in
pursuance
to
the
provisions contained in Sub Section (2)
of Section 25 of the Act on the basis of
membership list as was available in the
year 2004 to run the society in question.
Case law discussed:
[2006(24) LCD 1373], 2004(5)SCC 795, AIR
(39) 1952 SC 6, AIR 1978 SC 851, 1994
Allahabad CJ 162, (2001)8 SCC 509, 1991
Suppl. 2 SCC 36, 1991(2) SCC 412, 2002 Vol.
1 AWC 771, 2003 Vol. 3 AWC 1802.
2 All] Managing Committee and another V. State of U.P. and others
575
(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
parties. Precisely, the substantial question
of law involved in the present writ
petition is whether the tenure of the
Committee of Management may be
extended by resolution of the General
Body instead of electing the office bearers
in
accordance
with
the
procedure
provided in the bye-laws of the Society ?

2. Aljamiya Tul Islamia Lil Banaat
Educational Society, Dhaura, Tanda,
District Bareilly, in short, Society is a
society, registered under the Societies
Registration Act. The Society runs a
Madarsa with the name and title of
Aljamiya Tul Islamia Lil Banaat, in short
Madarsa. By the impugned order, the
Assistant Registrar, Firms, Societies &
Chits, Bareilly has allowed an amendment
done in the bye-laws of the society vide
alleged resolution of the general body
dated 25.3.2007.

3. Sri Ashok Khare, learned Senior
counsel, assisted by sri Ismamul Rahman
Khan submits that the Assistant registrar
while passing the impugned order has
exceeded its jurisdiction and the matter
could have been referred to the prescribed
authority under sub Section (1) of Section
25 of the Societies Registration Act. He
submits that the order has been passed
without providing reasonable opportunity
of hearing to the petitioners and the
affected parties.

4. However, while defending the
impugned order, it has been submitted by
Sri Mahtab Alam that the Assistant
Registrar has got juridiction to pass the
impugned order and it has been passed
with due opportunity of hearing to the
parties. It has been submitted that only
election dispute may be referred to the
prescribed authority and not a controversy
with regard to amendment in the bye-laws
of the society by which the total members
of the general body have been increased
from 11 to 34. Admittedly, the election of
the Committee of Management was held
in March 1999.

5. Before the term expired, a general
body meeting of the society was called on
4.3.2004. Out of 11, 9 members had
appeared and by resolution passed in the
said meeting, the term of the Committee
of Management was extended for five
years. The copy of the resolution has been
filed as Annexure-3 to the writ petition. It
has been stated that the resolution dated
4.3.2004 was confirmed in the subsequent
meeting of the general body dated
3.4.2004.
The
petitioners
filed
an
application before the Assistant Registrar
for the renewal of registration certificate
for the period of five years from
10.3.1999. In the mean time, one Sri
Abdul Jaleel moved an application dated
8.4.2004 before the Assistant registrar
claiming himself to be new general
secretary. The Assistant Registrar has
issued a notice dated 29.4.2004 calling
upon the petitioners to submit reply. It
was stated before the Assistant Registrar
by the petitioners that since Abdul Jaleel
could not get elected, he had set up a false
case with regard to the office of General
Secretary. Along with reply/objection
dated
12.5.2004
(annexure-7),
the
petitioners have also filed an affidavit of
seven members of the general body to
establish that Sri Abdul Jaleel was not
general secretary; rather the term of
earlier office bearers was extended for
five years. However, Sri Abdul Jaleel has
also staked his claim and later on moved
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
an application stating that the general
body meeting was convened on 25.3.2007
wherein out of 45 members, 32 appeared.
By amendment, it was provided that the
maximum number of members of the
Management Committee would be 25 and
minimum would be 11. Sri Abdul Jaleel
filed an affidavit also to establish his
claim. In response to it, the petitioners
stated that no meeting of the general body
was held to carry out the amendment and
34
names
have
been
added
by
interpolation and on objections filed by
the petitioners the notice was also issued
to Sri Abdul Jaleel.

6. The Assistant Registrar at his end,
by the impugned order dated 9th May,
2008 decided to register the amendment
keeping in view the papers submitted by
Sri Abdul Jaleel and the objections filed
by the petitioners were rejected. A copy
of the impugned order dated 9th May
2008 has been filed to Annexure-15 to the
writ petition.

7. While assailing the impugned
order, it has been stated that the Assistant
registrar has fixed only one date, i.e.
13.2.2008, on which date the petitioner
no. 2 was present but Sri Abdul Jaleel was
not present. It is stated that no hearing
took place and the case was adjourned in
absence of Sri Abdul Jaleel keeping in
view the application moved on his behalf.
After 13th August, 2008, no date was
fixed by the Assistant Registrar; rather the
impugned order was passed straight way
in utter disregard of principles of natural
justice.

8. Though the averments contained
in para 36 and 37 of the writ petition have
been denied in the counter affidavit (para
18) and it has been stated that various
dates were fixed but no date has been
mentioned. Thus, it appears that a vague
reply has been given by the respondents
to the averments contained in paras 36
and 37 of the writ petition.

9. While considering the arguments,
advanced by the learned counsel for the
parties, one other question seems to be
cropped up, i.e.:- whether the Committee
of Management was empowered to extend
its period for a further five years keeping
in view the resolution of the General
Body dated 4.3.2004 ?

10. From perusal of the bye-laws of
the Society, a copy of which has been
filed as Annexure No.2 to the writ
petition, it is evident that the Committee
of Management shall be selected by the
General Body under the guidelines given
in the bye-laws. Virtually, the word,
'selection' used by the draftee seems to
mean 'election'. Meaning thereby that all
the members of the General Body shall
elect the post holders of the Committee of
Management (office bearers) who shall
continue to discharge their obligation
under bye-laws for five years. For
convenience, relevant portion from the
bye-laws of the Society in question is
reproduced as under :

"A. FRAMING : There shall be a
Management committee to conduct, and
to manage the society which shall be
selected by theGeneral Body under the
following guidelines.

Above all the members the general
body shall select the following Post
holders of the Management Committee."

"B. MEETINGS : Meeting of the
Management Committee there will be 3
2 All] Managing Committee and another V. State of U.P. and others
577
general meeting in a year and special
meeting can be called at any time by the
president. In which the subject should the
mentioned as a reason of the meeting."

"C. INFORMATION : Duration of
Information - For the General Meeting of
the Management Committee information
should be given to each members, prior 3
days of the Meeting date and in case of
special meeting 24 hours before meeting
date, the information shall be given to the
members personally or through special
messenger."

"D. QUORRUM : 2/3 part of the
total members of the Committee is
sufficient to fulfil the quorum the
meeting."

"E. VACANCIES. Vacancies can
be fulfilled by the approval of the
President and the majority of the members
or the General Body by the 2/3 part of the
total member.

"F. RIGHTS AND DUTIES OF
MANAGEMENT COMMITTEE : To
make the arrangement and to define the
stable and unstable property of the
society.

To amend the objects in accordance
with the beneficial arrangement and
conductivity of the society.

To make arrangement of the funds
for carrying the expenditures of the
institution governed by the society.

To put the proposal about the annual
income and expenditures before the
General Body and future budget also.

To make the final decision and
appointments for the institutions governed
by the society.

Other beneficiaries steps for the
institutions.

"G.
DURATION
:
Management
committee, working period not less than
five years.

11. Thus, a combined reading of
relevant portion of the bye-laws of the
Society indicates that though the General
Body has got right to amend the bye-laws
but so far as the term of office bearers is
concerned, it shall expire after the period
for which they had been elected. The byelaws of the Society does not empower the
General Body to extend the period of the
Committee of Management by resolution.

12. The Scheme of Societies
Registration Act, 1860, in short Act, is
democratic in nature. The purpose is that
the office bearers of the society must be
elected for the period provided in the byelaws or rules of the society and any
member of the General Body has right to
contest such election. Ordinarily, the
resolutions are passed unanimously or by
majority. In case in absence of any
specific procedure, the societies are
permitted to extend the term of the
Committee of Management by resolution
of the General Body, it shall frustrate the
very object of the Act. Moreover, in the
present case, the resolution of 4.3.2004 is
by majority and is not unanimous. Even,
absence
of
one
member
makes
a
difference. Every member of a Society
has got right to express his views.
Accordingly, so far as the present case is
concerned, the extension of term by the
resolution of General Body seems to be
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
an act in derogation to bye-laws of the
Society.

13. A Division Bench of this Court
in a case reported in [2006(24) LCD
1373] Umesh Chandra and another
versus
Mahila
Vidyalaya
society
Aminabad,
Lucknow
and
others
(delivered by me) held that the committee
of Management and its member cannot
act in violation of bye-laws or the rules of
the society.

14. The aforesaid proposition may
also be inferred from the Scheme of the
Act. Under Section 1, the Society is
registered
in
pursuance
to
the
Memorandum of Association formed by
the founding members of the Society.
Under Section 2, it shall be obligatory for
the members to indicate various features
in the Memorandum of Association like
name of the society, its object etc. Under
Section 3-A read with Sections 4 and 4-A
of the Act, the renewal of certificate of
registration and annual list of managing
body is to be filed. Section 4 provides that
once in every year, on or before the
fourteenth day succeeding the day on
which, according to the rules of the
Society, the annual general meeting of the
society is held, or, if the rules do not
provide for an annual general meeting, in
the month of January, a list shall be filed
with the Registrar containing names,
addresses
and
occupations
of
the
governors, council, directors, committee,
or other governing body. The provision of
Section 4 provides that if the managing
body is elected after the last submission
of the list, the counter signature of the old
member, shall, as far as possible, be
obtained on the list. Section 4-A of the
Act relates to the amendment in the rules.
For convenience, Sections 4 and 4-A of
the Act are reproduced as under :

"4. Annual list of, managing body
to be filed.- Once in every year, on or
before the fourteenth day succeeding the
day on which, according to the rules of
the Society, the annual general meeting of
the society is held, or, if the rules do not
provide for an annual general meeting, in
the month of January, a list shall be filed
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.

Provided that if the managing body is
elected after the last submission of the
list, the counter signature of the old
member, shall, as far as possible, be
obtained on the list. If the old officebearers do not counter-sign 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 shal decide all
objections received within the said
period."

"4A. Changes etc. in rules to be
intimated to Registrar.- A copy of every
change made in rules of the society and
intimation of every change of address of
the society, certified by not less than three
of the members of the governing body
shall be sent to the Registrar within thirty
days of the change."

15. A combined reading of Sections
4 and 4-A of the Act shows that the
Managing Committee or the Committee
of Management of a society must be an
elected body. While framing bye-laws of
2 All] Managing Committee and another V. State of U.P. and others
579
the Society, the provisions contained in
Section 4 should be kept in mind. No
society can frame bye-laws contrary to
letter and spirit of the Section 4 of the Act
which
speaks
for
the
elected
representative. Once the term of the office
bearers of the Committee of Management
expire, then it shall always be incumbent
on the society to call the General Body
meeting and hold a fresh election.

16. In the case of Umesh Chandra
(supra),
various
pronouncements
of
Hon'ble
Supreme
Court
this
Court
considered and observed that every word,
every line and section of an statute should
be considered which ascertaining the
intent of legislature. Legislature to their
wisdom has used word "elected" in the
provision of section 4, which cannot be
ignored.

17. Undoubtedly, in case the dispute
arises with regard to election of the office
bearers of the Committee of Management,
then such dispute may be referred to the
prescribed authority in pursuance to
power conferred by Sub Section (1) to
Section 25 of the Act. The prescribed
authority has got power under subsection(1) to decide any doubt or dispute
in respect of election or continuance in
office of an office bearer of such society,
and may pass such order in respect
thereof as it deems fit. Relevant portion
from Section 25 of the Act is reproduced
as under :

"25. Dispute regarding election of
office-bearers.-(1)
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-bearers of such society,
and may pass such orders in respect
thereof as it deems fit...............................
"(2) Where by an order made under
sub-section(1), an election is set aside or
an office-bearer is held no longer entitled
to continue in office or where the
Registrar is satisfied that any election of
office-bearers of a society has not been
held within the time specified in the rules
of that society, he may call a meeting of
the general body of such society for
electing such office-bearer or officebearers, and such meeting shall be
presided over and be conducted by the
Registrar or by any officer authorised by
him in this behalf, and the provisions in
the rules of the society relating to
meetings and elections shall apply to such
meeting and election with necessary
modifications."

18. A Division Bench of this Court
in a case reported in 2004(5)SCC 795
New
Friends
Cooperative
House
Building Society Limited versus Rajesh
Chawla and others held that an order of
any person or authority limiting the right
to vote of election can be challenged
before
the
appropriate
competent
authority. A defective electoral roll can
also be challenged before the competent
authority or by filing a regular suit.

Hon'ble Supreme Court in a case
reported in AIR (39) 1952 SC 6 N.P.
Ponnuswami versus The Returning
Officer,
Namakkal
Constituency,
Namakkal, Salem, Distt. and others
held that where a remedy has been
provided under an Act or statute to
challenge the outcome of the election,
then that alternative remedy should be
availed and writ petition under Art. 226 of
580 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the Constitution shall not be maintainable.
N.P. Ponnuswami (supra) has been
reaffirmed by the Hon'ble Supreme Court
in a case reported in AIR 1978 SC 851
Mohinder Singh Gill and another
versus
The
Chief
Election
Commissioner, New Delhi and others.

A Division Bench of this court in a
case reported in 1994 Allahabad CJ 162
Basant Prasad Srivastava, Manager,
Gandhi
Smakarak
Uchchtar
Madhyamic
Vidyalaya,
Azamgarh
versus State of U.P. and others held that
the
election
of
the
Committee
of
Management of an institution may be
raised before the Civil Court. It has been
further held that in appropriate case, it
shall always be open to the parties to
approach the prescribed authority in
accordance with the provisions contained
in Sub Section (1) of Section 25 of the
Societies Registration Act.

In (2001)8 SCC 509 Shri Sant Sadguru
Janardan Swami Sahkari Dugdha Utpadak
Sanstha and another versus State of
Maharashtra and others, their Lordships
of Hon'ble Supreme Court held that the
breach
or
non-compliance
of
the
mandatory provisions or rules during
election process can be challenged in an
election petition.

19. In a case reported in 1991
Suppl. 2 SCC 36 Nagri Pracharini
Sabha versus Vth Additional District
Judge, Varanasi and others, Hon'ble
Supreme Court held that once the tenure
of the election of the office bearer was
over by passage of time, the Court should
decide the controversy keeping in view
the latter development.

In 1991(2) SCC 412 K. Murugan
versus Sencing Association of India,
Jabalpur and another, when the tenure
of the office bearer of Indian Olympic
Association was over, Hon'ble Supreme
Court appointed a retired Judge of
Hon'ble Supreme Court as receiver to
conduct the election in accordance with
rules of the society.

In 2002 Vol. 1 AWC 771 Seva
Samiti Allahabad and another versus
Assistant Registrar, Firms, Societies &
Chits and another where the term of the
Committee of Management had expired,
the Deputy Registrar was directed to hold
election in pursuance to power conferred
by Sub Section (2) of Section 25 of the
Act and a District Magistrate was
appointed to look after the routine affairs
of the Society.

20. In a case reported in 2003 Vol. 3
AWC 1802 Committee of Management
versus
Assistant
Registrar,
Firms,
Societies, a Division Bench of this Court
held that after expiry of tenure of
Committee of Management, the erstwhile
members
of
the
Committee
of
Management cannot hold election. Only
option is to proceed under Sub Section (2)
of Section 25 of the Societies Registration
Act by the Deputy Registrar.

21. In the present case, keeping in
view the observation made hereinabove, it
shall be appropriate that a fresh election
should be held of the Committee of
Management
in
pursuance
to
the
provisions contained in Sub Section (2) of
Section 25 of the Act on the basis of
membership list as was available in the
year 2004 to run the society in question.
2 All] State of U.P. and others V. Committee of Management and another
581
22. In view of above, the writ
petition is allowed. A writ in the nature of
certiorari is issued quashing the impugned
order dated 9.5.2008 (Annexure-15) with
consequential benefits. A writ in the
nature of mandamus is issued directing
the Registrar to hold the fresh election of
the Society in question in pursuance to
power conferred by Sub Section (2) of
Section 25 of the Societies Registration
Act, 1860 expeditiously and preferably
within a period of four months from the
date of receipt of a certified copy of this
order. For the interim period, the District
Magistrate, Bareilly shall appoint a
receiver who shall be an officer of the
district to do routine work of the society
in question till new elected committee
resumes office.

23. The writ petition is allowed
accordingly with no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2009

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Intervener Application No.
87478 of 2009
In
Special Appeal No. 517 of 2009

State of U.P. and others ...Respondents/
Appellants

Versus
Committee of Management, Anjuman
Madarsa Noorul Islam Dehra Kalan,
Ghazipur and another
...Petitioners/
 Respondents

Counsel for the Intervener:
Sri V.K.S. Chaudhary
Sri Boopendra Nath Singh
Counsel for the Respondents:
Sri Ch. N.A. Khan
S.C.

High Court Rules-Chapter XII Rule 5A
read with Code of Civil Procedure-Order
I
Rule
8-A-Intervener
Application-in
pending
Special
Appeal-at
proposed
applicant neither supporting case of
either the Appellant or Respondentsapplication with allegation of collusion
between State Government as well as
management of Madarsa run by Muslim
community-question
whether
muslim
belongs to minority community or notrequired investigation of facts-neither
question of law nor mixed question of
law-held-intervener
application
not
maintainable-rejected.

Held: Para 22

It is thus evident that the applicant
intervenor neither proposes to support
any of the parties in the writ petition nor
the issues raised by the parties. We,
therefore,
do
not
find
that
this
application as an intervenor can be
allowed
and
the
applicant
can
be
permitted
to
advance
submissions
opposing all the parties in the writ
petition.
In
fact,
the
remedy
lies
elsewhere. The intervenor-applicant, if
so advised, may avail such remedy as
admissible in law before the appropriate
forum
with
appropriate
pleadings,
grounds, reliefs, etc.
Case law discussed:
AIR 1985 SC 1622, 1999 (3) SCC 141, AIR
2000 SC 1296, AIR 2001 SC 1861, 2003 (5)
SCC 480, 2006 (5) SCC 62, 1999 (4) SCC 630,
JT 2007 (12) SC 86.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. We have heard Sri V.K.S.
Chaudhary, learned Senior Advocate
assisted by Sri B.N. Singh, Advocate on
Intervener Application filed on behalf of
Adhivakta Samanvay Samiti U.P. through