1 Court No. - 19 Case :- WRIT - C No. - 46551 of 2010 Petitioner :- Allahabad High School Society Thru' Its Sec. C.V.Innes & Anr. Respondent :- State Of U.P. And Others Petitioner Counsel :- Siddharth Khare,Ashok Khare Respondent Counsel :- C.S.C.,Prabhakar Awasthi,Shailendra Hon'ble Pankaj Mithal, J.
Petitioners, namely, Allahabad High School Society
Allahabad through its Secretary and C.V.Innes, Secretary,
Allahabad High School Society Allahabad have preferred this writ
petition assailing the order of the Assistant Registrar, Firms,
Societies and Chits, Allahabad dated 24.7.2010 which is said to
have been passed in exercise of powers under Section 12-D(b) of
the Societies Registration Act (hereinafter referred to as ‘Act’)
disapproving the amendments made in the Rules of the Society
made on 28.5.2007 and registered on 30.5.2007.
I have heard Sri Ashok Khare, Senior Advocate assisted by
Sri Siddharth Khare and Sri Manish Goyal on behalf of the
petitioners, learned Standing Counsel for respondents no.1 and 2
and Sri T.P.Singh, Senior Advocate assisted by Sri Shalendra for
respondents no.3 and 4.
Preliminary objections have been raised with regard to the
maintainability of the writ petition. First, the petitioners have no
locus in the matter as there is no authorisation and that C.V.Innes
is not the Secretary of the Society. Secondly, the other is
appealable under Section 12-D(2) of the Societies Registration
Act.
2
The notice dated 27.7.2010 for convening the General Body
Meeting issued by respondent no.3 pursuant to the impugned
order demonstrates that petitioner no.2 is at least a member of the
governing body. The umamended Rules 1952 by Rule 7 provides
for the election of the secretary at the annual general meeting.
The impugned order itself indicates that petitioner no.2 C.V. Innes
was elected as the honorary Secretary of the Society on
28.2.2003 in place of the earlier Secretary R.D.Dcamp. There is
nothing to indicate that any other person has been elected or
appointed as the Secretary in his place. He is thus prima facie
holding the post of the Secretary of the Society as an elected
member and not probably by virtue of his being the Principal, the
post from which he is said to have retired some time in the year
2008.
Rule 37 of the unamended Rules of 1952 of the Society
which are admitted to both the parties provides, “The Society may
sue or be sued in the name of the Secretary.” In view of the
aforesaid Rule the Society is authorised to institute legal
proceedings in the name and through the Secretary of the
Society. Generally, when proceedings are initiated by the
Secretary in the name of the Society the presumption is that he is
duly authorised unless proved otherwise. Moreover, during the
course of arguments an authorisation permitting C.V.Innes to
challenge the impugned order has also been produced by Sri
Khare which is taken on record as this Court is a court of record.
The dispute with regard to the election of office bearers or
their continuation in the office as an office bearer of the Society is
referable to the Prescribed Authority under Section 25 of the
Societies Registration Act but I find no such reference being
3
pending with regard to the continuation of the petitioner no.2 as
Secretary of the Society, meaning thereby that petitioner no.2 he
is de-facto the Secretary of the Society.
The entire proceedings before the Assistant Registrar were
effectively contested by him as Secretary of the Society and the
decision having gone against his interest he is a person aggrieved
with the impugned order.
In view of the above petitioners have prima facie established
their locus to maintain the writ petition.
The order impugned is certainly not an order cancelling the
registration of the Society. The powers vested in the Registrar by
virtue of Section 12-D are with regard to the cancellation of
Registration in certain circumstances and it is against the order
cancelling the registration of the Society that an appeal under sub-
clause (2) of Section 12-D of the Act is provided. Since the order
of cancellation of Registration has yet not been passed and the
impugned order only concerns with the disapproval of the
amendments in the bye-laws which were registered on 30.5.2007,
I am of the view that the appeal as provided under Section 12-
D(2) of the Act is not the proper forum available to the petitioner.
Much emphasis has been placed upon the observations of
the Apex Court contained in the order dated 16.4.2010 wherein it
was observed that the Assistant Registrar would pass an order on
merits and if the order is adverse, the petitioners shall be at liberty
to approach the proper forum on the question of jurisdiction in
accordance with law.
The Apex Court in the said order has nowhere said with any
certainty that such an order passed by the Registrar would be
4
amenable to an appeal as provided under Section 12-D(2) of the
Act.
In the above view of the matter I am prima facie satisfied
about the maintainability of the writ petition.
Now apart from attacking the impugned order on merits and
the jurisdiction of the Assistant Registrar vis-a-vis with regard to
the registration of such amendments made in the Rules, inasmuch
as Section 4-A of the Act only provides for intimation of every
change made in the Rules of the Society to the Registrar and
does not speak about its registration, whereas Section 12-A and
12-B of the Act provide for approval of the Registrar for the
change of the name and object of the Society only, it has been
contended that the impugned order has been passed in violation
of the principles of natural justice and is also within the teeth of
the order of the Apex Court dated 16.4.2010 which had
specifically permitted the parties to address the Assistant
Registrar further conscious of the fact that hearing had already
concluded before the Assistant Registrar.
In paragraphs 47 to 54 of the writ petition categorical
averments have been made that after the hearing took place
before the Assistant Registrar on 15.6.2010 the copy of the order
of the Supreme Court was furnished before him on 17.6.2010
whereupon the parties were allowed to submit additional
statement/evidence up to 21.6.2010 but no date for further
submission/hearing was fixed. In pursuance thereof the
respondent no.3 had submitted a representation on 19.6.2010
without serving/supplying a copy of the same to the petitioners
and the said representation with material appended thereto has
been relied upon and made the basis of passing the impugned
5
order, thus depriving the petitioners proper opportunity in the
matter.
The impugned order do reflects reference of the aforesaid
representation of respondent no.3 and reliance upon the material
which formed part of it. Thus, the averments made in the above
paragraphs of the writ petition need reply by the Standing Counsel
as well as respondents no.3 and 4.
Learned Standing Counsel as well as Sri Shalendra prays
for and are allowed two weeks time for filing counter affidavit. One
week thereafter is allowed to the petitioner for filing rejoinder
affidavit.
List for admission/final disposal immediately upon expiry of
the above period.
The Society runs several prestigious educational institutions
in Allahabad. This dispute of Society is likely to tarnish the image
of all these educational institutions. Therefore, in the interest of
these institutions and the public at large of Allahabad, this court is
anxious that the dispute of the Society aforesaid be resolved at
the earliest and expects the parties to make truce and to work in
tandem with each other so that prestige and sanctity of the
educational institutions run by the society is maintained; past
irregularities are cured; necessary steps be taken to amend the
Rules, if necessary, and the governing body of the Society is
properly constituted.
The amendments in the Rules on 28.5.2007 were made on
and were registered on 30.5.2007, therefore, petitioners have
made out a prima facie case for grant of interim order in so far as
disapproval to the aforesaid amendments is concerned.
6
Accordingly, till the next date of listing, the operation of the
impugned order dated 24.3.2010 passed by the Assistant
Registrar, Firms, Societies and Chits, Allahabad shall remain
stayed in so far as it disapproves the registration of the
amendments made in the Rules of the Society. It is made clear
that any action/decision taken pursuant to the impugned order
shall be subject to decision of this petition.
It is further provided that as continuation of petitioner no.2 as
Secretary of the Society has been seriously disputed, he is
restrained from exercising any financial power as Secretary of the
Society but this shall not affect the disbursement of the salary of
the staff.
Dt:11.8.2010
BK/