# Nishith Verma & Ors v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-05
- **Case number:** Writ-C No. 28369 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nishith-verma-ors-v-state-of-u-p-ors-49515
- **Pages:** 10

## Headnote

C.S.C.,Sri Kartikeya Saran, Sri Ram M.
Kaushik, Sri Satyavrat Sahai, Sri Radha
Kant Ojha (Sr. Adv.)

Writ
of
mandamus
-cannot
lie
unless
petitioner seek enforcement of any statutory
right-respondents
have
a
corresponding
statutory
obligation
-and
have
failed
to
discharge their obligation- the stage at which
the petitioners want an adjudication by the
Assistant Registrar-does not oblige the said
Officer to exercise the power u/s 4-B of the
Societies
Registration
Act,
1860-W.P.
dismissed. (E-9)

List of Cases cited:

## Text

718 INDIAN LAW REPORTS ALLAHABAD SERIES
when such power is conferred by the Act or
Rules under which it is made. Relying upon
the admitted facts of the case, this Court is
of the opinion that the Waqf Board has
exercised its power in most arbitrary
manner and without taking recourse as
available under the Act.

37. We further would like to observe
that only vague and evasive response has
been filed by the Waqf Board. Even though
categorical objection was taken by the
petitioner in para-24 of the writ petition,
wherein it is alleged that the order
impugned has been passed in arbitrary
manner without holding any Board's
meeting, which is mandatory under Section
17 (1) of the Act as there was neither any
agenda before the Board for supersession
of the Committee of the Management nor
any such meeting was convened for the
said purpose. In absence of any material
before us, we presume that there was no
such
agenda
before
the
Board
for
supersession of the petitioner Committee as
there is no categorical objection in the
counter affidavit. This also creates a doubt
regarding the working of the Waqf Board.
We are not inclined to proceed further
regarding the working of the Board but we
leave it open to the Board to introspect and
adhere the law in this regard.

38. In view of the foregoing
discussion, the writ petition is allowed and
the order dated 26.07.2023 passed by the
Waqf Board as well as the consequential
OM dated 31.07.2023 issued by the
Assistant Secretary of the Waqf Board are
set aside. The Waqf Board is directed to
pass speaking order in relation to the
appointment
of
the
Committee
of
Management of the aforesaid Waqf after
hearing all the parties concerned in
accordance with law within six weeks from
the date of receipt of certified copy of the
order. Meanwhile, in order to avoid the
vacuum in the administration of the Waqf,
we direct that the status quo as on today
shall be maintained by the parties.
----------
(2023) 12 ILRA 718
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 28369 of 2023

Nishith Verma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vineet Kumar Singh, Sri Anup Kumar
Srivastava, Sri Neeraj Sinha, Sri H.N. Singh
(Sr. Adv.)

Counsel for the Respondents:
C.S.C.,Sri Kartikeya Saran, Sri Ram M.
Kaushik, Sri Satyavrat Sahai, Sri Radha
Kant Ojha (Sr. Adv.)

Writ
of
mandamus
-cannot
lie
unless
petitioner seek enforcement of any statutory
right-respondents
have
a
corresponding
statutory
obligation
-and
have
failed
to
discharge their obligation- the stage at which
the petitioners want an adjudication by the
Assistant Registrar-does not oblige the said
Officer to exercise the power u/s 4-B of the
Societies
Registration
Act,
1860-W.P.
dismissed. (E-9)

List of Cases cited:

1. Oriental Bank of Commerce Vs Sunder Lal
Jain & anr. (2008) 2 SCC 280

2.
Bihar
Eastern
Gangetic
Fisherman
Cooperative Society Ltd. Vs Sipahi Singh (1977)
4 SCC 145
12 All. Nishith Verma & Ors. Vs. State of U.P. & Ors.
719
3. Lekhraj Sathramdas Lalvani Vs N.M. Shah,
AIR 1966 SC 334

4. Dr. Uma Kant Saran Vs St. of Bihar 1993(1)
SCC 485

5. Dr. Uma Kant Saran Vs St. of Bihar 1993(1)
SCC 485

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

1. Heard Shri H.N. Singh, learned
Senior Counsel assisted by Shri Neeraj
Sinha, learned counsel for the petitioners,
Shri I.P. Srivastava, learned Additional
Chief Standing Counsel for respondent
nos.1 and 2 and Shri Radha Kant Ojha,
learned Senior Counsel assisted by Shri
Satyavrat Sahai and Shri Ram Kaushik for
respondent no.3.

2. This Court passed following order
on 21.11.2023:-

"1. Shri R.K. Ojha, learned
Senior
Counsel
appearing
for
the
respondents has referred to certain orders
passed by the Hon'ble Supreme Court and
submits that in view thereof, this petition
cannot be heard as the matter is engaging
attention of Apex Court.

2. Shri H.N. Singh, learned
Senior Counsel for the petitioners submits
that he has not seen the said orders.

3. Put up this case tomorrow i.e.
22.11.2023 as fresh at 10:00 a.m.

4. In the meantime, Shri Ojha
shall supply the copies of all the relevant
orders to the learned counsel for the
petitioners. "

3. Shri H.N. Singh, learned Senior
Counsel has elaborately explained the effect of
the orders passed by Hon'ble Supreme Court
by submitting that pendency of proceedings
before the Apex Court or the said orders
would
not
affect
adjudication
of
the
controversy involved in the present writ
petition. In view of the above, it is necessary to
refer the proceedings pending before the
Hon'ble Supreme Court and the orders passed.

4. In 2016, one Shri T.P. Singh, a
member of the Kayastha Pathshala Prayag,
Allahabad, was expelled/removed from the
membership. The matter reached before the
Assistant Registrar, Firms, Societies and Chits,
Teliyarganj, Prayagraj who passed an order
dated
26.08.2017
observing
that
expulsion/removal of a member of the General
Body was beyond the scope of adjudication by
him under Section 4-B of the Societies
Registration Act, 1860 (hereinafter referred to
'the Act, 1860'). The said order was examined
by the Division Bench of this Court which
allowed Writ C No.58426 of 2017 [T.P. Singh
(En.
No.2473),
Senior
Advocate
v.
Registrar/Assistant Registrar, Firms Societies
& Chits, Teliyarganj & 4 Ors.] by order dated
10.10.2018 setting aside the order dated
26.08.2017 to the extent it was held by the
Assistant Registrar that he had no jurisdiction
to examine the objections raised by the
petitioner (Shri T.P. Singh) and the Assistant
Registrar was, accordingly, directed to
examine the said objections with regard to Shri
Singh's removal from membership.

5. It is against the aforesaid judgement
dated 10.10.2018 that Kayastha Pathshala,
Prayag and Anr. filed Special Leave to Appeal
(C)
No.29541
of
2018
(Kayastha
Pathshala, Prayag & Anr. v. T.P. Singh &
Ors.) before the Hon'ble Supreme Court in
which following order was passed on
13.11.2018:-

"Leave granted.
720 INDIAN LAW REPORTS ALLAHABAD SERIES

To be heard along with C.A.
No.5420-21/2017.

Issue notice in the prayer for
interim relief, returnable in two weeks.

Dasti, in addition, is permitted."

6. Thereafter, another order was
passed
by
the
Supreme
Court
on
03.12.2018 in the following terms:-

"Having regard to the direction
given in the impugned judgment we are of
the opinion that Assistant Registrar may
decide the dispute about the removal of
respondent no.1 from membership of
General Body of the Society as directed by
the High Court. However, the decision
taken by the Assistant Registrar in this
behalf shall not be given effect and shall be
produced before this Court in a sealed
cover in terms of the direction given by the
High Court.

List after four weeks."

7. It is contended by Shri H.N. Singh
that the matter pending before Hon'ble
Supreme Court is only in relation to
removal
of
Shri
T.P.
Singh
from
membership and has nothing to do with the
present writ petition which has been filed
by three petitioners claiming a relief that
the elections of the Trust which are going
to be held shortly, be held after examining
the correctness of membership of existing
and newly inducted members of the
Governing Council at the level of the
Assistant Registrar under Section 4-B of
the Act, 1860 after providing opportunity
of hearing to the petitioners. Shri Singh
further submits that pursuant to directions
issued by the Apex Court in the order dated
03.12.2018, the Assisting Registrar has
already decided the question of removal of
Shri
T.P.
Singh
from
membership,
however, the decision has not seen light of
the day as it has been kept in a sealed cover
in terms of the order of the Apex Court.

8. Shri R.K. Ojha, learned Senior
Counsel appearing for respondent no.3, on
the other hand, submits that there are two
other
orders
dated
09.05.2016
and
12.05.2016 passed by Hon'ble Supreme
Court in Special Leave to Appeal (C)
Nos.3811-3812/2016, Board of Trustees of
The Shia College And The School And
other Connected Institutions And Anr. v.
Dr. Syed Akhtar Hasan Rizvi And Others).
The said orders are quoted hereinbelow:-

"Order dated 09.05.2016

Issue notice.

Mr. Anupam Lal Das, learned
counsel accepts notice on behalf of
respondents.

Counter affidavit be filed within
six weeks.

Rejoinder affidavit, if any, be
filed within another two weeks.

List thereafter."

Order dated 12.05.2016

The order dated 09.05.2016 is
clarified that any direction taken by the
Governing Body during the pendency of
the matters before this Court will be subject
to the final outcome of those matters."

9. It is further contended by Shri Ojha
that though the aforesaid two orders have
been passed in a different case but since the
12 All. Nishith Verma & Ors. Vs. State of U.P. & Ors.
721
S.L.P. of Kayastha Pathshala, Prayag has
been connected alongwith the said case, no
direction can be issued to the Assistant
Registrar to exercise powers under Section
4-B of the Act, 1860.

10. Having heard the learned counsel
for the parties on the effect of the orders
passed by Hon'ble Supreme Court, I find
that insofar as the Kayastha Pathshala,
Prayag is concerned, the lis brought before
the Apex Court was in respect of
expulsion/removal of Shri T.P. Singh,
Senior Advocate from membership of the
Trust
and,
infact,
the
order
dated
03.12.2018 passed by the Apex Court has
already been complied with by the
Assistant Registrar whose decision, though
not perused by any of the parties, has been
kept in a sealed cover. The orders passed in
the case of Board of Trustees of The Shia
College (supra), in the opinion of the Court,
with due respect, would not be obstructive
in hearing of this petition as the Hon'ble
Supreme Court too has not restrained
holding of periodical elections in any of its
orders. In view of the above, this Court
proceeds to hear this petition on merits.

11. This writ petition has been filed
by three petitioners seeking a Writ of
Mandamus commanding the Assistant
Registrar,
Firms,
Societies
&
Chits,
Prayagraj to decide the correctness of
membership of the existing and newly
inducted members of the Governing
Council of Kayastha Pathshala, Prayag in
accordance the provisions of Section 4-B of
the
Act,1860
before
conducting
the
elections of President and 20 members of
the Executive Council of the Society with a
further prayer directing the Assistant
Registrar to finalize the list of General
Body
and
decide
the
petitioners'
representation in that regard.

12. Shorn of unnecessary details, the
facts pleaded in the writ petition are
substantially to the effect that Kayastha
Pathshala, Prayag (in short 'the Society') is
a Society registered under the provisions of
the Act, 1860 and is governed by its
registered
bye-laws.
The
petitioners,
claiming themselves to be members of the
Governing Council of the Society, have
pressed their right to contest elections and
by referring to various clauses of the byelaws including Clause Nos.5, 6, 7, 8, 9, 14
and 47, it has been pleaded in the petition
and contended during the course of
arguments that elections of the Governing
Body can be held strictly in accordance
with the provisions of the said bye-laws
and not otherwise. Specific reference to
Clauses 8, 9 and 14 has been made with
regard to enrolment of various members in
the Society and the procedure prescribed
for that purpose.

13. The submission of Shri H.N.
Singh, learned Senior Counsel, is that
various members were induced in the
Society from time-to-time, total newly
added
members
being
2182
upto
03.09.2022 and by referring to the lists of
newly enrolled members, it has been
argued that their enrolment corresponding
to serial numbers and enrolment numbers
and the manner in which their details have
been incorporated in the lists, is of much
significance considering the death of
various members and other aspects. The
submission is that in view of Section 4-B of
the Act, 1860, the Assistant Registrar is
under statutory obligation to examine the
correctness of the list of members of the
General Body of the Society on the basis of
register of members, minutes book, cash
book, receipt book of the membership fees
and bank passbook of the Society and that
in case of induction, removal, resignation
722 INDIAN LAW REPORTS ALLAHABAD SERIES
or death of any member, a modified list of
members of General Body has to be filed
with the Registrar within one month from
the date of change. He, therefore, submits
that petitioners, objecting to the said
enrolment,
have
already
filed
a
representation dated 10.06.2023 before the
Assistant Registrar, however, no order has
been passed by him and, in the meantime,
elections have been notified by the
respondent no.3.

14. It is further argued that the Trust
runs various organisations and Educational
Institutions, in which, there is involvement
of public money and, hence, before any
elections are held, exercise under Section
4-B of the Act, 1860 has to be carried out
but the Assistant Registrar is not adhering
to the petitioners' request contained in the
representation
and,
hence,
elections
notified should not be held unless such an
exercise is completed. Shri Singh has
emphatically argued on the amendments
incorporated in the Act, 1860 and submits
that such incorporation in the Statute Book
was made to attach sanctity and purity to
elections.

15. Per contra, Shri R.K. Ojha,
learned Senior Counsel appearing for
respondent no.3, submits that there being
thousands of members in the Trust, the writ
petition having been filed only by three
members is not maintainable, particularly
when they are not the contestants in
election programme already notified; that
the nomination process has already been
finalized on 03.10.2023 and the elections
would be held on 25.12.2023. He has
further placed before this Court the
notification published in the newspaper
regarding
holding
of
elections.
The
notification is kept on record as the same has
not been disputed by the petitioners side. Shri
Ojha further submits that insofar as the power
of Assistant Registrar under Section 4-B is
concerned, it is nowhere provided that
whenever elections are to be held, the
Assistant Registrar would carry out the
exercise, as suggested by the petitioners, and
that the plain language used in Section 4-B of
the Act, 1860 shows that such an exercise can
be
carried
out
at
the
time
of
registration/renewal of a Society and not
otherwise. He further submits that Section 4B (2) of the Act, 1860 only provides that in
case of induction, removal, resignation or
death of any member, the only requirement is
to submit a modified list of members of the
General Body with the Registrar which
exercise has already been carried out by the
respondent no.3. Shri Ojha has also placed
reliance upon order dated 14.09.2018 passed
by this Court in Writ C No.29593 of 2018
(Kumar Narayan And 4 Others v. State of
U.P. And 2 Others) and has argued that in the
year 2018 also, an identical dispute was
raised by few members, however, this Court,
while declining to interfere in the matter,
disposed off the writ petition by order dated
14.09.2018 in the following terms:-

"8. This Court cannot go into the
merits of the arguments raised by either of the
parties as this Court has only a limited
jurisdiction to show interference in this
matter since this writ petition has been filed
only with the following main prayer:-

"I. Issue a writ, order or direction
in the nature of Mandamus directing the
Respondent No. 2 to decide the objection
dated 14.5.2018 filed by the Petitioner against
the proposed amendments with a time bound
period and not to permit the present
management to implement the same in the
forthcoming election and include the name of
newly enrolled members in the list of
electorate."
12 All. Nishith Verma & Ors. Vs. State of U.P. & Ors.
723

9. The direction has been prayed
for only to the respondent No. 2 to decide
the objections dated 14.05.2018 within a
time bound period and if such objections
are allowed, then, not to permit the present
management to implement the same in the
forthcoming election and include the name
of newly enrolled members in the list of
electorate.

10. This Court cannot go into the
question whether the election process
which has already been set in motion is
being vitiated by the amended bye-laws if
they are enforced, the Registrar has to look
into the amended bye-laws first. This Court
exercises only secondary review thereafter.
Since the Registrar has not yet decided the
objections, the suggestion made by the
learned Senior Counsel for the respondents
regarding the elections being carried out
either as per the amended bye-laws or as
per the original unamended but registered
bye-laws, cannot be looked into by this
Court also as it would amount to
preemption of the jurisdiction of the
Registrar in this regard.

11. In view of the settled law
settled by a Division Bench of this Court in
Special Appeal No. 1355 of 2013: Vineet
Agnihotri And Anr. vs State Of U.P. And 6
Others decided on 25 April, 2014, this
Court does not find it appropriate to pass
any order at this stage directing the
Registrar to decide the objections dated
14.05.2018.

12. This writ petition is disposed
off with a liberty to the petitioners to
challenge the result of the elections either
before the Prescribed Authority under
Section 25(1) of the Act on the grounds as
mentioned in the Act or they may raise
their objections at the time when the list of
elected
members
is
submitted
for
registration before the Registrar. It shall be
open for the Registrar to look into the
procedural aspects of the amendments
carried out by the Respondent No. 3 in the
bye-laws and in case he finds that the
amendments were not permissible, he may
pass appropriate orders and may refer the
matter to the Prescribed Authority for
decision regarding the election of the
office-bearers
of
the
Society.
The
Prescribed Authority may strictly follow
the provisions of Section 25(1) and the
proviso thereof in determining the dispute,
if any, which is referred either by the
Assistant Registrar or application, if any,
filed by the petitioners before him in
accordance with law."

16. Shri Ojha, therefore, submits that
the elections may be directed to be held
and, in case, the petitioners are aggrieved
by the result of elections in any manner
whatsoever, they have a remedy to agitate
their grievances before the Prescribed
Authority under Section 25(1) of the Act,
1860 after satisfying statutory requirement
of 1/4th quorum. He further submits that
the registration of the Society, having been
renewed in 2020 for a period of five years,
even if, certain exercise under Section 4-B
of the Act, 1860 is to be carried out by the
Assistant Registrar, such occasion may
arise in year 2025 when further renewal is
sought and not at the stage when elections
have already been notified.

17. Shri I.P. Srivastava, learned
Additional
Chief
Standing
Counsel
appearing for the respondent nos.1 and 2
submits that the State Authorities act
strictly in accordance with the provisions of
the Act, 1860 and, as on today, no law
obliges the Assistant Registrar to decide the
representation of three members out of
724 INDIAN LAW REPORTS ALLAHABAD SERIES
around 31000 members, otherwise there
would be no end to such litigation and
exercise and the result would be that the
election process would come to a standstill.

18. Having heard the learned counsel
for the parties, before dealing with the
merits of the rival contentions, it is
necessary to refer to Section 4-B of the Act,
1860 which is quoted as follows:-

"4-B.
(1)
At
the
time
of
registration/ renewal of a society, list of
members of General Body of that society
shall be filed with the Registrar mentioning
the name, father's name, address and
occupation of the members. The Registrar
shall examine the correctness of the list of
members of the General Body of such
society on the basis of the register of
members of the General Body and minutes
book thereof, cash book, receipt book of
membership fee and bank pass book of the
society.

(2) If there is any change in the
list of members of the General Body of the
society referred to in sub-section (1), on
account of induction, removal, registration
or death of any member, a modified list of
members of General Body, shall be filed
with the Registrar, within one month from
the date of change. Any change in the list
of General Body shall not be valid unless it
is approved by the Managing Body.

(3) The list of members of the
General Body to be filed with the Registrar
under this section shall be signed by two
office-bearers and two executive members
of the society."

19. The aforesaid provision is selfexplanatory and the court cannot attach any
other meaning to a provision of law which it
does not provide.

20. It is well settled that Words and
phrases are symbols that stimulate mental
references to referents. The object of
interpreting a statute or any statutory
provision is to ascertain the intention of the
Legislature or the Authority enacting it. (See
Institute of Chartered Accountants of India v.
M/s Price Waterhouse and Anr., AIR 1998
SC 74). The intention of the maker is
primarily to be gathered from the language
used, which means that attention should be
paid to what has been said as also to what has
not been said. As a consequence, a
construction which requires for its support,
addition or substitution of words or which
results in rejection of words as meaningless
has to be avoided. As observed in Crawford
v. Spooner, (1846) 6 Moore PC 1, Courts,
cannot
aid
the
Legislatures,
defective
phrasing of an Act, we cannot add or mend,
and by construction make up deficiencies
which are left there. (Also See State of
Gujarat and Ors. v. Dilipbhai Nathjibhai Patel
and Anr,. JT 1998 (2) SC 253). It is contrary
to all rules of construction to read words into
an Act unless it is absolutely necessary to do
so. (See Stock v. Frank Jones (Tiptan) Ltd.,
1978 (1) All ER 948 (HL). Rules of
interpretation do not permit Courts to do so,
unless the provision as it stands is
meaningless or of doubtful meaning. Courts
are not entitled to read words into an Act of
Parliament unless clear reason for it is to be
found within the four corners of the Act itself.
(Per Lord Loreburn L.C. in Vickers Sons and
Maxim Ltd. v. Evans, (1910) AC 445 (HL),
quoted in Jamma Masjid, Mercara v.
Kodimaniandra Deviah and Ors., AIR 1962
SC 847.

21. The question is not what may be
supposed and has been intended, but what
12 All. Nishith Verma & Ors. Vs. State of U.P. & Ors.
725
has
been
said.
"Statutes
should
be
construed not as theorems of Euclid". Judge
Learned Hand said, "but words must be
construed with some imagination of the
purposes which lie behind them". (See
Lenigh Valley Coal Co. v. Yensavage, 218
FR 547). The view was re-iterated in Union
of India and Ors. v. Filip Tiago De Gama
of Vedem Vasco De Gama, AIR 1990 SC
981. In D.R. Venkatchalam and Ors. etc. v.
Dy. Transport Commissioner and Ors. Etc.,
AIR 1977 SC 842, it was observed that
Courts must avoid the danger of a priori
determination
of
the
meaning
of
a
provision based on their own pre-conceived
notions of ideological structure or scheme
into which the provision to be interpreted is
somewhat fitted. They are not entitled to
usurp
legislative
function
under
the
disguise of interpretation.

22. While interpreting a provision, the
Court only interprets the law and cannot
legislate it. If a provision of law is misused
and subjected to the abuse of process of
law, it is for the legislature to amend,
modify or repeal it, if deemed necessary.
(See Commissioner of Sales Tax, M.P. v.
Popular Trading Company, Ujjain, 2000 (5)
SCC 515. The legislative casus omissus
cannot be supplied by judicial interpretative
process. The golden rule for construing
wills, statutes, and, in fact, all written
instruments has been thus stated: "The
grammatical and ordinary sense of the
words is to be adhered to unless that would
lead to some absurdity or some repugnance
or inconsistency with the rest of the
instrument, in which case the grammatical
and ordinary sense of the words may be
modified, so as to avoid that absurdity and
inconsistency, but no further" (See Grey v.
Pearson 6 H.L. Case 61). Words may be
modified or varied where their import is
doubtful or obscure. But we assume the
functions of legislators when we depart
from the ordinary meaning of the precise
words used, merely because we see, or
fancy we see, an absurdity or manifest
injustice from an adherence to their literal
meaning" (See Abley v. Dale 11, C.B.
378).

23. Coming to the rival contentions, it
is apparent on the face of the record that
election process has already been set into
motion and elections shall be held on
25.12.2023. The General Secretary of
respondent no.3 has already submitted a list
alongwith application dated 06.03.2023
before the Assistant Registrar that reads as
follows:-

" To

Dated: 06.03.2023

The Asstt. Registrar,

Firms, Societies & Chits,

Mehdauri,

Allahabad.

Sub: Information required under
Section 4B(2) of Societies Registration
Act, 1860-submitting information duly
modified list of the members of General
Body.

Sir,

As required under Section
4B(2) of Societies Registration Act, 1860,
we are furnishing herewith the list of newly
enrolled members of Kayastha Pathshala
under Rule 9 of Kayastha Pathshala Rules
alongwith members died.

It is humbly submitted that all the
members are enrolled in strict compliance
of the Rule 9 of Kayastha Pathshala Rules
and the same has been approved by the
Executive Council of Kayastha Pathshala.
726 INDIAN LAW REPORTS ALLAHABAD SERIES

It is clarified that membership of
Kayastha based on one time donation and
as such there is no requirement for the
removal of existing members. In this view,
it is submitted before your honor that the
list is now being submitted in continuation
of the earlier list of membership duly
submitted to your office

Kindly take a note of it and
acknowledge the same.

Yours Sincerely,

Encl: As above

(S.D. Kautilya)

 General Secretary"

24. Apparently, the information
furnished
upon
Assistant
Registrar,
according to the respondent no.3, is in
consonance with the bye-laws/rules of the
Society and, therefore, the Court is satisfied
that at this stage, the requirements of
Section 4-B of the Act, 1860 stand fulfilled
at the end of respondent no.3. As already
held by this Court in the order dated
14.09.2018 passed in Writ C No.29593 of
2018 that after the election process has
already been set into motion, the Court
cannot issue a direction to the Assistant
Registrar to adjudicate the issue of
enrolment of members or otherwise. This
Court has already left the parties with
liberty to challenge the result of election
either before the Prescribed Authority or at
the time when the list of elected members
is submitted before the Registrar.

25. From a plain reading of subSections (1) and (2) of Section 4-B of the
Act, 1860 it is apparently clear that
examination of correctness of the list of
members of the General Body of a Society
on the basis of documents referred to in
sub-Section (1) can be made only at the
time of registration/renewal of a Society
and in the event of induction of new
members, the only requirement is to submit
a modified list of members with the
registrar. Admittedly, it is not a stage of
registration/renewal of the Society but a
stage when elections have already been
notified and are going to be held very
shortly. In view of the above discussion,
this Court is of the considered opinion that
the stage at which the petitioners want an
adjudication by the Assistant Registrar,
does not oblige the said Officer to exercise
the power under Section 4-B of the Act,
1860 and, hence, no mandamus, as sought
for, can be issued as it is well-settled that a
mandamus cannot be issued to violate the
law or to act in-violation of the law but a
Writ of such nature can be issued only
when the statutorily Authorized Officer is
under statutory obligation to exercise such
power, which, in the present case does not
stand reflected in view of the above
discussion.

26. It is well-settled that a Writ of
mandamus cannot lie unless petitioner is
seeking enforcement of any statutory right
and respondents have a corresponding
statutory obligation in the matter petitioner
is seeking enforcement and have failed to
discharge their obligation.

27. In Oriental Bank of Commerce
Vs. Sunder Lal Jain and another (2008) 2
SCC 280 the Apex Court, after referring to
its earlier judgments in Bihar Eastern
Gangetic Fisherman Cooperative Society
Ltd. Vs. Sipahi Singh (1977) 4 SCC 145;
Lekhraj Sathramdas Lalvani Vs. N.M.
Shah, AIR 1966 SC 334, Dr. Uma Kant
Saran Vs. State of Bihar 1993(1) SCC 485,
observed that there is abundant authority in
favour of the proposition that a writ of
mandamus can be granted only in a case
12 All. Brijraj Nishad Vs. State of U.P. & Anr.
727
where there is a statutory duty imposed
upon the officer concerned and there is a
failure on the part of that officer to
discharge the statutory obligation."

28. The above exposition of law
makes it clear that writ of mandamus
cannot be issued on mere asking unless the
pre-conditions are satisfied. Such welldefined conditions are not satisfied in the
present case.

29. The writ petition is, accordingly,
dismissed with liberty to the petitioners to
approach the Prescribed Authority under
Section 25 of the Act, 1860, after the
election result is declared but certainly after
satisfying
the
statutory
requirements
contained under the said provision itself.
----------
(2023) 12 ILRA 727
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-C No. 29945 of 2023

Brijraj Nishad ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vivek Chaubey, Sri Nipun Singh

Counsel for the Respondents:
C.S.C., Sri Gyanendra Prakash Srivastava

A. Local body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - Gram Pradhan
- Seizure of administrative and financial
power - Show Cause Notice - Notice
issued without clarifying the grounds of
action - Notice not in conformity with the
principle of natural justice - Permissibility
- Held, to ensure conformity with the
principles of natural justice, the show
cause notice is required to specify what
the consequences will be if the addressee
of the notice does not satisfy the grounds
on which the action is proposed. Besides
the notice being sufficient, it is also
necessary to state the grounds for need of
action and also to specifically and clearly
mention the proposed penalty - Held
further, an elected representative can be
removed only and strictly in accordance
with law and in this regard the law which
provides
for
removal
of
an
elected
representative has to be strictly construed
- High Court declared the show cause
notice
nullity
for
being
vague
and
ambiguous. (Para 16 and 21)

Writ petition allowed. (E-1)

List of Cases cited:

1. UMC Technologies (P) Ltd. Vs F.C.I. & anr.;
(2021) 2 SCC 551

2. Oryx Fisheries Pvt. Ltd. Vs U.O.I. & ors.;
(2010) 13 SCC 427

3. State of Punjab Vs Davinder Pal Singh
Bhullar; (2011) 14 SCC 771

4. Badrinath Vs St. of T. N. & ors.; AIR 2000 SC
3243

5. State of Kerala Vs Puthenkavu N.S.S.
Karayogam & anr.; (2001) 10 SCC 191

6. Mangal Prasad Tamoli (dead) by Lrs. Vs
Narvadeshwar Mishra (dead) by Lrs. & ors.;
(2005) 3 SCC 422

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Nipun Singh, learned
counsel for the petitioner, Mr. Gyanendra
Prakash Srivastava, learned counsel for the
complainant and learned Standing Counsel
for the State-respondents.