Allahabad High School Society, Allahabad And Others v. State Of U.P And Others, Allahabad High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Sri Sanatan Dharam Sabha v. The Registrar, Firms, Societies and Chits, U.P, Lucknow, AIR 1989 ALL 189	Section 4-A of the Act is directory; intimation of amendments is required but non-compliance does not invalidate amendments.	The Court relied on this to hold that the requirement of intimation under Section 4-A is not mandatory and non-communication does not nullify resolutions.
Managing Committee, Khalsa Middle School v. Mohinder Kaur, 1993 Supp (4) SCC 26	Amendments to rules become effective from the date of passing the resolution, not registration.	The Court affirmed that registration of amendments is not a condition precedent for their effectiveness.
Prabha Shanker Mishra v. State of U.P, 2009 (77) ALR 713	Registrar has no power under Section 4-A to adjudicate merits of amendments, only to receive intimation.	Supported the view that the Registrar's role under Section 4-A is limited to factual verification of valid convening of meetings.
Liyakat Marquise Khan v. Christ Church College Society, Kanpur, (2010) 4 UPLBEC 3311	Registrar’s role under Section 4-A is limited to intimation and does not include adjudication.	Reiterated the limited scope of Registrar’s powers under Section 4-A.
Adhyaksha, Committee of Management Sri Vimal Nath Digamber Jain Teerth Kshetra Committee v. Dy. Registrar, Firms Societies and Chits Kanpur Mandal, 2011 (84) ALR 334	Amendments need only be communicated; disputes over validity are to be resolved by civil suit.	Used to support that Registrar does not have power to invalidate amendments on merits under Section 4-A.
Shiksha Samiti Degree College v. Registrar, Firms, Societies and Chits, U.P, AIR 1990 All 110 (DB)	Registrar’s power to adjudicate validity of amendments and to register them.	The Court noted this decision but held it per incuriam and not binding, favoring the contrary view that registration of amendments is not mandatory.
Banarasi Das v. Cane Commissioner, Uttar Pradesh, AIR 1963 SC 1417	Distinction between mandatory and directory statutory provisions; penalty does not necessarily render provision mandatory.	Applied to interpret Section 4-A as directory despite penalty for non-compliance.

(By Hon'ble Vikram Nath, J)

This intra-court appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 has been filed assailing the correctness of the judgment and order dated 22.02.2011, passed by the learned Single Judge in Writ Petition No. 46551 of 2010, Allahabad High School Society, Allahabad v. State of U.P, whereby the learned Single Judge dismissed the writ petition and affirmed the order of the Assistant Registrar, Firms Societies and Chits dated 24.07.2010 allowing the objections of the respondent no. 3 and cancelling the registration of the amendments approved by appellants in the meeting dated 28.05.2007 and various other resolutions registered on 30.05.2007 and further nullifying the said resolutions. The Assistant Registrar issued direction to the Bishop to convene fresh meeting for consideration of the amendments after constituting the general body in accordance with Rule 11 of the Rules of the Society.

The Assistant Registrar and the learned Single Judge have referred to the relevant facts relating to the background of this case in great detail. We are however not referring to all the details giving rise to this appeal but in short we would refer to the facts which are relevant according to us.

There is a Society by the name of Allahabad High School Society founded in the year 1861 and registered under the provisions of the Societies Registration Act, 1860 (hereinafter referred to as the Act) in the year 1888. Its registration had been renewed from time to time under the provisions of the Act, as applicable to the State of U.P The basic and core object of the society in short is to impart christian education in Allahabad and neighbouring areas.

With the aforesaid object the Society established a boys school and a girls school in the city of Allahabad. The constitution provided as to how both the institutions would be managed. With the passage of time both boys and the girls school came to be known as the Boys' High School, Allahabad and the Girls' High School, Allahabad. Major amendments in the Rules of the Society were brought about in the year 1952 and they continued as such till the amendments in question cropped up during the period 2004-2007.

The Ex. Officio members as provided in Rule 3(i) of the Rules of the Society w.e.f 1952 included-(a) The Bishop of Lucknow (b) The Commissioner of the Allahabad-Jhansi Division (C) The Collector of Allahabad (d) The priest in-Charge of All Saints' Cathedral, Allahabad (e) The Secretary of the Education Board of the Lucknow Diocesan Council (f) The Headmaster of the Boys' High School, Allahabad (g) The Headmistress of the Girls' High Schools, Allahabad. Rule 7 of the Rules of the Society provided that Bishop of Lucknow would be the Chairman of the Society. Further under Rule 18 of the Rules the Bishop who was the Chairman of the Society was also vested with certain overriding powers to declare any resolution of the Governing Body invalid which in his opinion contravened the Constitution, Canons of Rules of the Church of India. By the proposed amendments which are said to have been considered and passed in the meetings of the Society dated 27.11.2004, 28.11.2005, 23.11.2006 and 28.5.2007 the provisions relating to Ex. Officio members was done away with, the Bishop would no longer be the Chairman of the Society and consequently the overriding powers of the Bishop was also deleted. A comparative chart containing the details of the Rules as they existed since 1952 and alterations and amendments made in it in the various meetings referred to above and registered on 30.05.2007 is being extracted below :

Rule

No.

Original Rules of 1952

Altered Rules by amendment made on

28.5.2007

Remark s

1. In rules 3, 7, and 18, the expression “the bishop of Lucknow” shall mean the Bishop of Lucknow and in his absence the Bishop's Commissary.

Deleted

(i) Ex-Officio Members :

The following shall be Ex-officio members, namely,

(a) The Bishop of Lucknow.

(b) The Commissioner of Allahabad-Jhansi Division.

(d) The Priest in charge of All Saints' Cathedral, Allahabad.

(e) The Secretary of the Education Board of the Lucknow Diocesan Council.

(f) The Headmaster of the Boys' High School, Allahabad.

(g) The Headmistress of the Girls' High School, Allahabad.

(ii) Life Members :

A person who has subscribed a sum of not less than one thousand rupees to the Society shall, subject to the approval of

All deleted

the Governing Body, be a life membership.

(iii) Ordinary Members :

Any person who agrees to pay the prescribed monthly subscription shall be eligible for election as an ordinary member.

(iv) Honorary Members :

Any person not already a member of the Society who is elected an officer of the Society or a member of the Governing Body shall be an honorary member.”

4. Termination of Membership:

(e) on his absence from India for six consecutive months;

(f) if any honorary member, on his ceasing to be a member of the Governing Body.

7. Chairman : The Bishop of Lucknow, unless he be unwilling to act shall be the Chairman of the Society.

9. Duties of Secretary:

(c) appoint and dismiss such clerks and servants as he shall consider necessary and upon such terms as he shall deem fit;

11. Governing Body Constitution:

The management of the affairs of the Society shall be vested in the Governing Body which shall consist of the officers of the Society and not less than twelve, not more than nineteen, other persons, and shall include not less than three

Deleted

Governing Body Constitution:

The Management of the affairs of the society shall be vested in the Governing Body which shall consist of officers of society and not less than 7 other members. The members of the Governing Body shall be

Altered

exofficio members. The members of the Governing Body shall be elected by the Society at its Annual General Meeting and shall hold office until the conclusion of the next Annual General Meeting.

elected by the Society at its Annual General Meeting and shall hold office for a term of five consecutive years and may or may not be reelected.

13. Termination of Termination

Membership of the Governing Body : If any member of Governing Body shall become insolvent or of unsound mind or cease to reside in the Diocese of Lucknow for a period of more than six consecutive months or shall signify to the Chairman his desire to retire, he shall, from the date of the happening of any such event, cease to be a member of Governing Body.

of Membership of the Governing Body:

If any member of Governing Body shall become insolvent or of unsound mind or cease to reside in India for a period of more than a year or shall signify to the Chairman his desire to retire, he shall, from the date of the happening of any such event, cease to be a member of Governing Body.

Altered

17. General Powers :

(c) to promote and contribute to any enterprise which shall have for its object the making or doing of any work or thing conducive directly or indirectly to the attainment of the objects of the Society;

(g) to appoint upon such terms as it deem fit the Principal and assistant teachers of the schools or colleges conducted by the Society; such persons being, if possible, communicant members of the

Church of India, Pakistan, Burma and Ceylon, or of a Church in

To appoint and dismiss upon such terms as it deems fit the Managers, Directors,

Bursars,

Principal, Head Master, Head Mistresses of the Schools or Colleges through the Officers of the Society in writing in the name of the Chairman, such

Deleted

Altered communion with it, and to suspend or discharge any principal and teacher.

(i) to appoint a Priest of the Church of India, Pakistan, Burma and Ceylon or of church in communion with it, and duly licensed by the Bishop of Lucknow, as School Chaplain; and to suspend and discharge him, appointments shall then be confirmed by the House.

Deleted

18. Overriding Power of the Bishop of Lucknow :-

The Bishop of Lucknow shall have an overriding power to declare invalid any resolution of the Governing Body which in his opinion, contravenes the Constitution, Canons or Rules of the Church of India, Pakistan, Burma and Ceylon but such power must be exercised within 14 days of the said resolution being brought to his knowledge

Deleted

38. Amendment to the Rules :

These rules may be altered, amended or revised only at a meeting of the Society specially called for the purpose and then only if approved by at least three quarters of the members of the Society present at such a meeting.

Amendment to the Rules :

These rules may be altered, amended or revised only at a meeting of the Society specially called for the purpose and then only if approved by at least threefourth of all the members of the Society.

Explained and altered

The appellant no. 2 was appointed as Principal of the Boys' High School in the year 1988 and by virtue of the said office he became member of the Governing Body and later on he was elected/nominated, as the case may be, as the Secretary of the Society. At the time the meeting for considering the amendments and its subsequent registration in the year 2004-07 took place one Mr. A.R Stephen was the Bishop. It is apparent from the record that said Mr. A.R Stephen had participated in all the meetings relating to the amendments in the Rules of the Society. In the year 2009 respondent no. 3 Mr. Morris E. Dan became Bishop of Lucknow Diocese in place of Mr. A.R Stephen. Respondent no. 3 upon coming to know of the amendments in the Rules of the Society as registered on 30.5.2007 which in fact severed the association of the Society with the Diocese of Lucknow, raised objections before the Assistant Registrar and prayed for cancellation of such registration. Repeated representations were filed by respondent no. 3 and each time notices were issued by the Registrar to the appellant no. 2 calling upon him to submit his reply along with the relevant records. Initially some petitions were filed for a direction to the Assistant Registrar to expedite consideration and disposal of the objections filed by the respondent no. 3 in which innocuous orders were passed, commanding the Assistant Registrar to take appropriate decision in accordance with law within a fixed time frame.

The Assistant Registrar pursuant to the objections of the respondent no. 3 dated 30.09.2009 vide notice dated 01.10.2009 (Annexure 25-A to the affidavit) intimated that inquiry/investigation was to be carried out under section 24 of the Act and accordingly called upon the appellant no. 2 to submit his reply to the objections and to produce all the relevant records and evidences in support of his case. Thereafter the Assistant Registrar issued further notices as and when fresh objections were filed. Notice dated 02.02.2010 was issued calling upon the appellant no. 2 to submit all the records relating to the registration of the amendment otherwise action under Section 12-D(1)(b) of the Act would be taken. Similar notice was given on 11.02.2010 These show cause notices were challenged by way of Writ Petition No. 9598 of 2010 on the ground that the Assistant Registrar had no authority to examine the validity of the amendment. This petition was dismissed by the learned Single Judge vide judgment and order dated 16.4.2010 The appellant no. 2 preferred an intra court Appeal being Special Appeal No. 615 of 2010 which was dismissed by a Division Bench of this Court vide judgment and order dated 20.05.2010 Against the same the appellant no. 2 preferred Special Leave to Appeal before the Apex Court registered as Special Leave Petition (Civil) No. 16919 of 2010. The said Special Leave Petition was disposed of by the Apex Court vide order dated 15.06.2010 which is quoted hereunder-

Pursuant to the order passed by the Division Bench of the High Court under the heading ‘Conclusions’, we have been given to understand that Assistant Registrar under the Societies Registration Act, 1860 is seized of the matter. We have been informed that today arguments have been heard and matter is reserved for orders. In this view of the matter we are not inclined to interfere with the impugned order passed either by the learned Single Judge or by the Division Bench.

However, we only want to clarify that Assistant Registrar would pass the order on merits including the question of jurisdiction in accordance with law, without being influenced in any manner whatsoever by any of the observations either made by the leaned Single Judge or by the Division Bench. If any adverse order is passed against the petitioner then they shall be at liberty to approach the proper forum on the question of jurisdiction in accordance with law. However, both the parties shall be at liberty to address the Assistant Registrar further.

The Special leave petition is disposed of accordingly.

As liberty was given to the parties to further address the Registrar with regard to the question of jurisdiction, the appellant no. 2 filed his representation on 21.06.2010 whereas the respondent no. 3 has filed his objections on 19.06.2010 The Assistant Registrar vide order dated 24.07.2010 cancelled the registration of the amendments of the Rules and also the resolution approving the amendment in the rules.

This order of the Assistant Registrar dated 24.07.2010 was challenged by means of Writ Petition No. 46551 of 2010 by the present appellants. The said petition was dismissed by the learned Single Judge vide judgment and order dated 22.02.2010, which has given rise to the present appeal.

The findings recorded by the Assistant Registrar in his order have largely been affirmed by the learned Single Judge, except one finding which related to the aspect as to whether the registration of the Society was renewed at the relevant time or not. The findings which have been affirmed by the learned Single Judge, as recorded by the Assistant Registrar, are as follows:

(i) There was interpolation and forgery in the records of the Society.

(ii) The basic feature of the Society along its primary object had been altered by way of amendments in the rules.

(iii) The meeting of the Society had not been validly convened in accordance with the Rules of the Society and the provisions of the Act.

(iv) The Registrar had the jurisdiction to not only deal with the validity of the convening of the meeting but also to examine the merits of the resolution regarding the amendments in the rules.

(v) The appellant no. 2 was not a member of the Society but was holding the office of the Secretary by virtue of being the Principal of the Boys High School, Allahabad.

(vi) Sufficient opportunity had been given to the parties not only of filing objections but also of leading evidence and of hearing.

(vii) The appellants had failed to show that any prejudice was being caused to them due to non-service of the objections filed on 19.06.2010 by the respondent no. 3 pursuant to the liberty given by the Apex Court.

We have heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Manish Goel, Advocate for the appellants and Sri T.P Singh, learned Senior Advocate assisted by Sri Prabhakar Awasthi, representing the respondent nos. 3 and 4. We have also heard Sri Ashwani Kumar Mishra, Advocate appearing for the intervenor Mr. David Luke, who is claiming to be the newly appointed Principal of the Boys' High School. Sri S.C Dwivedi learned counsel appearing for S.P Prakash has also made his submissions.

Sri Khare has submitted that the order of the Assistant Registrar as affirmed by the learned Single Judge cannot be sustained in law as they suffer from grave error apparent on the face of the record. His arguments in brief are : (i) That the Assistant Registrar while exercising the powers under Section 12-D of the Societies Registration Act, 1860 (hereinafter referred to as the Act) had no authority or jurisdiction to cancel the registration and resolution relating to amendment in the Rules. The only power vested under Section 12-D is to cancel the registration of the Society on admissible grounds as provided under the said section. He further submitted that the Assistant Registrar was not vested with any other power under the said section nor it could pass any order except the cancellation of the registration of the Society. (ii) That even assuming that the Assistant Registrar was vested with the powers to cancel the amendments made in the Rules under Section 24 of the Act, but as the procedure prescribed under the various subsections of Section 24 of the Act, which were not followed by the Assistant Registrar, the impugned order could not be sustained in law. (iii) That before the Assistant Registrar, adequate opportunity was not given to the appellants as such the order passed was in violation of principles of natural justice and fair play.

On the other hand Sri T.P Singh, learned Senior Advocate appearing for the Bishop and the Director (Administration) of Diocese of Lucknow has tried to justify the orders passed by the Assistant Registrar and the learned Single Judge. Further according to Sri Singh, the appellant no. 2, who had been appointed as Principal of the Institution in the year 1988, in order to continue his hold on the Institution and to usurp the assets of the Institution and the Society, played fraud and manipulated the records. Further according to Sri Singh the amendments in the Rules were in fact amendments in the basic objects of the Society. He has also raised a further point that the appellant no. 2 having attained the age of superannuation as per the Rules of the Society from the post of the Principal of the Institution, could not continue any further as Principal and consequently as Secretary of the Society, as such he has no locus to maintain the writ petition as also this appeal.

We now proceed to deal with the respective arguments advanced at the Bar.

Regarding jurisdiction of the Assistant Registrar - In order to appreciate this controversy it would be appropriate to first refer to the relevant provisions contained under the Act conferring powers on the Assistant Registrar. Under Section 2 of the Act a society is to be formed by not less than 7 members with defined objects and also having framed its rules and regulations for the conduct of the society. The Registrar under Section 3 of the Act may register the objects but in certain conditions may decline to register. Such conditions for registration of the objects are specified under Section 3 of the Act. Section 4-A of the Act requires that any amendment in the rules of the society need to be intimated to the Registrar within 30 days from the date of the resolution passing the amendment. Sections 12, 12-A, 12-B, 12-C and 12-D of the Act give the Registrar the powers to cancel the registration of the society under different situations. Sections 22 to 24 of the Act confer the power on the Registrar to inspect the records of the society audit the accounts of the society and further the power to look into the affairs of the society as to whether they are being managed in accordance with the provisions of the Act and the objects and rules of the society. Section 24 of the Act lays down the detailed procedure to be followed by the Registrar in case any mismanagement or manipulation is noticed by him either on a complaint or otherwise.

We first deal with the scope of Section 4-A of the Act and the powers it confers on the Registrar. Section 4-A of the Act is quoted herein under :

4-A. 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.

The argument of Sri Khare, learned senior counsel for the appellants referring to Section 4-A of the Act is that it does not require any registration. It is only an intimation which is to be given to the Registrar for being retained on record. The provisions of Section 4-A of the Act according to him are only directory in nature and not mandatory. According to him even where the Society fails to communicate to the Registrar within 30 days of the meeting of the amendment, the amendment would not be nullified but upon payment of certain penalty the same can be intimated subsequently also. In support of his submissions Sri Khare relied upon the following decisions :

(i) Sri Sanatan Dharam Sabha v. The Registrar, Firms, Societies and Chits, U.P, Lucknow, [AIR 1989 ALL 189].

(ii) Managing Committee, Khalsa Middle School v. Mohinder Kaur (Smt.), [1993 Supp (4) SCC 26].

(iii) Prabha Shanker Mishra v. State of U.P, [2009 (77) ALR 713].

(iv) Liyakat Marquise Khan v. Christ Church College Society, Kanpur, [(2010) 4 UPLBEC 3311].

(v) Adhyaksha, Committee of Management Sri Vimal Nath Digamber Jain Teerth Kshetra Committee, Kampil, U.P Farrukhabad v. Dy. Registrar, Firms Societies and Chits Kanpur Mandal, Kanpur, [2011 (84) ALR 334].

It has further been submitted that although there are large number of decisions, referred to above, in support of his submissions but there is one decision of the Division Bench of the Allahabad High Court in the case of Shiksha Samiti Degree College v. Registrar, Firms, Societies and Chits, U.P, [AIR 1990 All 110 (DB), which takes a view different from his arguments. According to Sri Khare, the contrary view taken in the case of Shiksha Samiti Degree College (supra) is no authority in the eye of law as the said judgment would be perincuriam for two reasons; firstly that the earlier Division Bench decision of 1989 (supra) was not noticed by the said Division Bench in the year 1990 and secondly the Division Bench read something which was not there in the statute book stating it to be as if it was there in the statute book and that being sole basis of taking that view the same cannot be relied upon. It is then submitted that this Court having taken a different view subsequently, the same would be binding and that should be the correct view to be adopted. The view of the learned Single Judge having relied upon the judgment in the case of Shiksha Samiti Degree College (supra) ignoring the above arguments and the authorities right up to the Apex Court, would be vitiated in law.

We have examined the authorities relied upon by Sri Khare. In the case of Sri Sanatan Dharam Sabha (supra) the Division Bench of this Court was of the view that under Section 4-A of the Act the only requirement is of giving intimation of any amendment in the rules of the society, to the Registrar and such requirement was only directory in nature and not mandatory. In paragraphs 10 to 12 of the report it was held that Section 4-A of the Act which requires communication of such a resolution, within a specified time if not communicated would not lead to invalidation of the said resolution. The same are quoted herein under for ready reference:

10. It is now well settled that merely imposition of penalty for non-performance of an action cannot necessarily lead to the conclusion that the provision is mandatory in nature. It is also now well settled by various authorities that where a statute does not expressly provide for nullification of consequences of the non-compliance of a statutory provision but imposes expressly some other penalty then it is a question of construction in each given case whether the legislature intended to lay down an absolute prohibition or merely makes the person offending liable for penalty.

11. In Banarasi Das v. Cane Commr., Uttar Pradesh, AIR 1963 SC 1417 at p. 1424 it has been held that a statute having regard to its object purpose and scope “is found to be directory a penalty may be incurred for non-compliance but the act or thing done is regarded as good.” Thus, in this light, we examine whether provisions of S. 4-A is mandatory or directory in nature.

12. In the present case, the only allegation of non-compliance of Section 4-A is non-communication of the resolution passed by the general body within thirty days. It cannot be doubted it is merely a procedural difficulty and unless this defect leads to invalidate the resolution itself by some provision of the same statute it cannot be said to be mandatory in nature. It is significant Section 27 which provides for penalty confines to the non-communication of the papers as required under Section 4-A leading to the penal consequences, but does not further specify of penal consequences even if the same was communicated to the authorities concerned but beyond the period as stipulated under Section 4-A. Further, it is not in dispute that any byelaw could be amended by the general body and the communication is only done by the person who is authorised by the general body and mere failure of a person authorised by the general body to communicate to an authority under the statute would not lead to invalidate the action of the whole of the general body. It may be in order that a proper supervision and checks are made by the authorities under the statute period is provided and persons who are liable to communicate, if fail, are made liable for penalties, but, in our opinion, this cannot be stretched to make even the action of the general body to be invalid. The statue is meant for the proper functioning of a society and provisions are made to see the benefit which accrues to the said society are not whittled out and a statute is to be interpreted to give benefit to the subject for which it has been enacted. In fact, it is in cases where on account of default the very purpose is defeated and penal consequence is provided for and such a statute is to be read as mandatory in nature. It is not in all cases where penalty is provided, it is neither on account of merely of penal consequences provided for or use of word “shall” could lead to a conclusion that a particular statue is mandatory in nature. In the present case, we find the only ground on which it has been urged, to which we are concerned is whether mere non-communication of the resolution of the general body within thirty days as required under Section 4-A would lead to invalidate the very resolution on account of the said section being mandatory in nature in view of penalty provided for under Section 27. As we have said above, the penalty is on account of its non-communication to the authority concerned and the liability is fastened on the person who is responsible to communicate. However, it cannot be read further that if the said resolution was communicated to the authorities after the said period would also lead to invalidate the valid resolution passed by the said body. Thus, we are of opinion that Section 4-A of the aforesaid Act to the extent it requires a resolution to be communicated within a specified period if not communicated within such a period cannot lead to invalidate the said resolution. If such a provisions is made as mandatory then mere mischief of any, who is authorised to communicate, by dealing within the said period would frustrate the action of the whole general body, which could not be the intention of the Legislature. In view of this the finding of the Deputy Registrar, contained in Annexure 13 to the writ petition, that the election dated 23rd August, 1987, would be invalid on account of the resolution dated 21st April, 1985, not being communicated to the authorities within thirty days cannot be upheld.

Further it was held by the Division Bench that the Registrar could always examine as to whether the meeting for passing such a resolution relating to amendment in the rules of the society, had nor had not been validly convened in accordance with the existing rules of the society and the provisions of the Act. This aspect had been dealt with by the Division Bench in paragraph 13 and 14 of the report which is reproduced herein below:

13. However, the second question which arises in the present case and which has been raised on behalf of the respondent is that the aforesaid resolution dated 21 April, 1985, was not passed at all and the said meeting was not validly called and further even if it is held it was called and the meeting was held the resolution amending the bye-law was only passed after the meeting was adjourned and thus there is no question of amendment of the bye-law in fact and on this ground the election held by the petitioner on 23 August, 1987, on the basis of the said amendment in the bye-law could not be said to be valid.

14. It is significant in the impugned order the case of the respondent No. 4 has been recited by the authority by saying that an objection has been raised by Sri Madan Lal that no resolution for amending the bye-law was ever proposed nor it was passed, but no adjudication was made by the authorities. It was strongly contended by the learned counsel for the respondent no. 4 that since no such resolution was passed, nor it was proposed, therefore, there was no amendment of the bye-law. After careful consideration we are of opinion that this question requires consideration by the authority concerned. Since this was a question specifically raised even before the authority by the respondent No. 4 and if a conclusion is drawn on the basis of record there was no such resolution passed, or there was no such meeting held or if held it was illegal then there would be no question of any amendment of the bye-law. Since this raises pure question of fact it would not be right for this Court exercising its extra-ordinary jurisdiction under Article 226 of the Constitution to adjudicate on the same. We, therefore, direct the respondents to decide afresh the latter question after giving opportunity to the parties on the basis of relevant records of the case. In case the authority comes to the conclusion that such a resolution was passed by the said general body on 21 April, 1985, then such an amendment is liable to be treated to be valid and in case it is held otherwise there will be no amendment of the byelaw and thereafter in either case after coming to the conclusion it may then pass a consequential order either to treat the existing petitioner-committee to be validly elected or hold fresh elections in accordance with law treating the bye-law to be unamended if such a finding is recorded.

In the case of Managing Committee, Khalsa Middle School (supra) the Apex Court was dealing with a question with regard to date on which a resolution passed regarding amendment to the rules would become effective. The Apex Court held that the amendments in the rules would be effective from the date on which the resolution was made and not the date on which they were registered. In this case the amendments in the rules and regulations of the society had been passed by a resolution dated 01.07.1979 but they came to be registered on 13.03.1980 The Apex Court in paragraph 10 of the report was of the view that as the Societies Registration Act does not provide for registration of any amendment made in the rules or regulations, as such any amendments in the rules or regulations would be effective from the date of passing of the resolution i.e 01.07.1979 and not the date on which they are registered i.e 13.03.1980 Paragraph 10 of the report reads as under :

10. Apart from the requirement contained in Section 12-A for registration of the change of name of a society with the Registrar, there is no requirement in the Societies Registration Act which requires registration of any amendment in the Memorandum of Association or the Rules and Regulations of a society to be registered with the Registrar. Even in the Companies Act, 1956 a distinction is made in the matter of alteration of the Memorandum of Association and alteration of the Articles of Association. Under Section 18 of the Companies Act, it is necessary that alteration of Memorandum of Association be registered with the Registrar of Companies within the prescribed period and the alteration takes effect from the date of its registration and under Section 19 (1), it is provided that the alteration shall have effect only if it has been duly registered in accordance with the provisions of Section 18. There is no such requirement with regard to registration of the alteration in the Articles of Association of the company. Here we are concerned with the amendment in the Rules and Regulation of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Shri Mehta that the amendment which was made in the Rules and Regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended Rules and Regulations were registered with the Registrar, Firm and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the said amendment was passed i.e July 1, 1979. As a result of the said amendment in the Rules and Regulations of the Society, the alterations made in the Rules and Regulations in 1963 were reversed and the position as it stood prior to the amendment of 1963 was restored. Consequently, the school which was a minority institution till the amendment of the Rules and Regulations in 1963 and had ceased to be a minority institution as a result of the amendment in 1963 regained its status as a minority institution after July 1, 1979 when the rules and regulations were amended and the original position was restored. In view of the restoration of the minority character of the institution the provisions of the Education Act and the Education Rules ceased to be applicable to the institution after July 1, 1979. The impugned order of termination of the services of the respondent was passed on December 31, 1979, i.e, after the school had become a minority institution. The said order cannot, therefore, be held to be invalid on the ground that it was passed in contravention of Section 8 of the Education Act. The order passed by the Delhi High Court quashing the said order as well as the disciplinary proceedings cannot, therefore, be upheld. The respondent was placed under suspension on August 11, 1972 and continued under suspension till April 9, 1973 on which date Education Act came into force. In other words she was under suspension at a time when the Education Act was not in force. The order of suspension cannot be judged on the basis of the provisions of the Education Act and the Education Rules. We are, therefore, unable to uphold the direction of the High Court quashing her order of suspension.

In the case of Prabha Shanker Mishra (supra) the learned Single Judge of this Court relying upon the Division Bench decisions in the cases of Sri Sanatan Dharam Sabha and Managing Committee, Khalsa Middle School (supra) again held that any amendment made by the society in rules or bye-laws only required that its intimation be given to the Registrar and that the said provision did not give any power to the Registrar to adjudicate or decide the objections with regard to the said amendment in the rules or regulations of the society.

In the case of Liyakat Marquise Khan (supra) a Division Bench of this Court reiterated the view in paragraph 15 of the report that Section 4-A of the Act does not require any adjudication on the part of the Registrar and the only requirement under the said provision was to bring to the notice of the Registrar the amendment in the rules.

In the case of Adhyaksha, Committee of Management Sri Vimal Nath Digamber Jain (supra) the learned Single Judge of this Court was of the view that the amendment should be communicated to the Registrar and in case such formalities had been completed no further action was necessary. It further held that if any person disputes the resolution passed for the said purpose, the remedy is to file a civil suit. Paragraph 14 (second) of the report reads as follows :

This, Court, therefore, holds that the Deputy Registrar is legally justified in recording a finding that the amendments made in the bye-laws of the society are not required to be registered by the Deputy Registrar. Only information in respect of such amendments is to be forwarded in the manner prescribed, if such formality has been completed, no further action is necessary. If any person disputes the resolution passed for the said purpose, he has the remedy to file a civil suit.

This Court prior to and subsequent to the judgment in the case of Shiksha Samiti Degree College (supra) held that the provision of intimation of an amendment in the rules was only directory and not mandatory and no registration of amendment in the Rules of the Society was required. Further even the Apex Court in the case of Managing Committee Khalsa Middle School (supra) had held that there was no requirement of registration of any amendment in the Rules or Bye-laws of the society under the Act. We would thus be bound by the view that no registration under Section 4-A of the Act was required and the Registrar would not have any power to adjudicate on the merits of the amendment. The only power vested in the Registrar under Section 4-A of the Act was to examine the fact as to whether the meeting of the Society had been validly held in accordance with the provisions of the Act and the Rules of the Society. Only scope of this aspect could be to make factual verification as to whether the meeting was validly convened, due notice was given, quorum was complete and it was passed by the required majority. Beyond that the Assistant Registrar could not go into the question of the merits of the amendments and adjudicate upon the same while exercising powers vested under Section 4-A of the Act.

The question is even if there was no requirement of registering the amendment in the Rules under Section 4-A of the Act what would be the effect of such registration and its subsequent cancellation. Section 19 of the Act provides that any person may apply for inspection and for obtaining certified copy of the records of any society which may be filed with the Registrar, duly certified by the Registrar. It does not confine to the documents registered with the Registrar which clearly implies that all documents available with the Registrar whether registered or not and merely filed can be inspected and certified copies obtained thereof. Apparently for this reason the documents which are to be registered under Section 3 of the Act the Registrar may adjudicate upon such documents. However, documents which do not require registration the Registrar may only examine whether or not such documents have been validly passed in accordance with the Rules of the Society and the provisions of the Act.

Now coming to the powers of the Assistant Registrar under Section 12-D of the Act we find that the specific power given is of cancelling the registration of the society. Section 12-D(1)(b) of the Act appears to have been invoked by the Assistant Registrar. Under Section 12-D of the Act the Registrar has the power to cancel the registration of the society on any of the three grounds referred to in clauses (a), (b) and (c) thereof which reads as follows:

12-D Registrar's power to cancel registration in certain circumstances. - (1) Notwithstanding anything contained in this Act, the Registrar may, by order in writing, cancel the registration of any society on any of the following grounds:

(a) that the registration of the society or of its name or change of name (is) contrary to the provisions of this Act or of any other law for the time being in force;

(b) that its activities or proposed activities have been or are or will be subversive of the objects of the society or opposed to public policy;

Provided that no order of cancellation of registration of any society shall be passed until the society has been given a reasonable opportunity of altering its name or object or of showing cause against the action proposed to be taken in regard to it.

(2) An appeal against an order made under subsection (1) may be preferred to the Commissioner of the Division in whose jurisdiction the Head-quarter of the Society lies, within one months from the date of communication of such order.

(3) The decision of the Commissioner under subsection (2) shall be final and shall not be called in question in any court.

Clauses (a) and (c) of Section 12-D(1) of the Act do not appear to be applicable in the present case. It is under clause (b) of Section 12-D(1) of the Act, where the activities of the Society are found to be subversive and contrary to the objects in existence or opposed to public policy, could result into cancellation of the registration. The learned Single Judge and the Registrar have recorded finding that the activities of the Society were subversive to the primary objects of the Society and therefore rightly the powers of Section 12-D of the Act have been invoked. The Registrar, however, has not cancelled the registration of the Society but has only cancelled the registration of the amendments in the rules by nullifying the resolution of the meetings of the Society, which approved the said amendments invoking the powers vested under Section 12-D of the Act.

The language used in Section 12-D is unambiguous and specific. It confers the powers to cancel the registration only and no other power. We cannot read something which is not there in the provision. The provision does not confer the Registrar with power to pass any other order as he may deem fit in case of any of the conditions specified in clauses (a), (b) and (c) being in existence. In case the Legislature wanted the Assistant Registrar to exercise any other power under Section 12-D of the Act then the same ought to have been specifically conferred. The Assistant Registrar and the learned Single Judge have proceeded on the assumption that a wider power contains a lesser power also and as such the Assistant Registrar having exercised the power only to cancel the amendment in the rules, which is lesser in degree than cancelling the registration of the Society, the order passed was well within jurisdiction. We are unable to agree to such a reasoning. Section 21 of the General Clauses Act applied by the Assistant Registrar and the learned Single Judge do not inspire confidence to hold that the Registrar had the power to cancel the amendments while exercising powers under Section 12-D of the Act. There is one more reason for recording the above finding and that is that the Registrar would have the power to cancel the registration of the amendment but that power could be derived from Sections 4-A and 24 of the Act and not from Section 12-D of the Act. Section 24 of the Act gives wide powers to the Registrar to look into the affairs of the society and eventually proceed to pass an order cancelling the registration of the Society under Section 12-D or referring the matter to the Court for dissolution of the Society under Section 13-B of the Act. Further under Section 4-A of the Act the Registrar could examine as to whether the meeting for amending the Rules of the Society had been validly convened or not.

Coming to Section 24 of the Act it may be noticed that the powers under this section are much wider. To appreciate the same Sections 22 to 24 of the Act are quoted herein under:

22. Power of Registrar to call for Information:- (1) The Registrar may, by written order, require any society to furnish in writing such information or document within such time, being ordinarily not less than two weeks from the date of receipt of the order by the society, as he may specify in the order in connection with the affairs of the society or any documents filed by the society under this Act.

(2) On receipt by the society of an order under Subsection (1), it shall be the duty of the President, Secretary or any other person authorized in this behalf of furnish such information or document.

23. Audit. (1) Without prejudice to the provisions of Subsection (2) of Section 4 or of Section 22, where the Registrar is of opinion that it is necessary or expedient so to do, he may, by written order require any society to furnish its accounts or copy of the statement of receipts and expenditure for any particular year duly audited by the Chartered Accountant.

Provided that the Registrar may, at the request of society permit it to have such accounts and statement by any other person approved by him.

(2) If the society fails to furnish the documents referred to in Sub-section (1) within the period specified in the order or within such extended period as the Registrar may from time to time allow, the Registrar may cause the accounts of such society audited for the said year and may recover the cost of such audit from the society.

(3) It if society neglects or refuses to make its accounts or other documents available for audit under Subsection (2)k or in the opinion of the Registrar, otherwise fails to provide requite facilities to have the audit made, with due expedition, the registrar may proceed to take action under Section 24.

24. Investigation of affairs of a society:- (1) Where on information received under Section 22 or otherwise, or in circumstances referred to in Sub-section (3) of Section 23, the Registrar is of opinion that there is apprehension that the affairs of a society registered under his Act are being so conducted as to defeat the objects of the society or that the society or its governing body or whatever name called, or any officer thereof in actual effective control of the society is guilty of mismanaging its affairs or of any breach of fiduciary or other like obligations, the Registrar may, either himself or by any person appointed by him in that behalf, inspect or investigate into the affairs of the society or inspect any institution managed by the society.

(2) It shall be the duty of every officer of the society when so required by the Registrar or other person appointed under Sub-section (1) to produce any books of account and other records of or relating to the society which are in his custody and to give him all assistance in connection with such inspection or investigation.

(3) The Registrar or other person appointed under Subsection (1) may call upon and examine on oath any officer, member or employee of the society in relation to the affairs of the society and it shall be the duty of every officer, member or employee, when call upon, to appear before him for such examination.

(3-A) The Registrar or other person appointed under sub-section (1) may, if in his opinion it is necessary for the purpose of inspection or investigation, seize any or all the records including accounts hooks of the society.

Provided that any person from whose custody such record are seized shall be entitled to make copies thereof or to take extracts there from in the presence of the person having the custody of such records.

(4) On the conclusion of the inspection or investigation, as the case may, the person, if any, appointed by the Registrar to inspect or investigate shall make a report to the Registrar on the result of his inspection or investigation.

(5) The Registrar may after such inspection or investigation, give such directions to the society or to its governing body or any officer thereof as he may thinks fit for the Removal of any defects or irregularities with such time as may be specified and in the event of default in taking action according to such directions, the Registrar may proceed to take action under Section 12-D or Section 13-B, as the case may be.

Under Section 24 of the Act the Registrar has been vested with the powers to make investigation in the affairs of the society and where he is of the opinion that there is apprehension that the affairs are being so conducted so as to defeat the objects of the society or that the society or its governing body or officer thereof in actual effective control of the society is guilty of mismanaging its affairs or of any breach of fiduciary or other like obligations, he may either himself or by any person appointed by him in that behalf inspect or investigate the affairs of the society and in that process also inspect any institution managed by the society. Sub-section (2) of Section 24 of the Act provides that it would be the duty of every officer of the society as and when required by the Registrar or other person appointed to investigate, to produce all relevant records relating to the society which are in its custody and to extend all assistance in that regard. Under Sub-section (3) of Section 24 of the Act the Registrar or other person appointed by him may examine on oath any officer, member or employee of the society in relation to the affairs of the society. Under sub-section (3-A) of Section 24 of the Act the Registrar or other person appointed is vested with the powers of seizing any or all the records including account books of the society. Sub-section (4) of Section 24 of the Act provides that where inspection or investigation is being made by a person appointed by the Registrar under Sub-section (1) he shall make a report to the Registrar as a result of his inspection or investigation.

Significantly sub-section (5) gives the power to the Registrar to take appropriate action. According to it the Registrar may issue directions to the society, its governing body or any officer thereof to remove any defects or irregularities within the time prescribed and in the event of default in taking appropriate action as per the directions, the Registrar may proceed to take penal action under Section 12-D or Section 13-B, as the case may be.

From the above discussion the following conclusions emerge with regard to the powers of the Registrar under the Act :

i) Section 4-A of the Act is directory in nature.

ii) Section 4-A of the Act only contemplates of intimation being given to the Registrar.

iii) The Registrar has no power under Section 4-A of the Act to adjudicate upon the merits of the resolution.

iv) The Registrar may examine the validity of the meetings relating to the amendments of the Rules of the Society.

v) Under Section 12-D of the Act the Registrar has the power to cancel the registration of the Society and has no other power either lesser or greater.

vi) Sub-section (5) of Section 24 of the Act empowers to the Registrar to look into the affairs of the Society and gives wide powers to issue necessary directions for corrections of any anomalies and only on failure to comply with such directions that he may proceed to cancel the registration of the Society under Section 12-D of the Act or to refer to the Court for dissolution of the Society Section 13-B of the Act.

In the light of the above irrespective of the fact whether the registration of the amendment in the Rules of the Society was required or not we have to examine whether the meetings of the Society for considering and passing the resolution for amendments in the Rules had or had not been validly convened in accordance with the Rules of the Society and the provisions of the Act.

Learned counsels appearing for the respondent 3 and the intervenor have submitted that the meetings of the Society in which the matters relating to amendment in the Rules of the Society, were considered and approved were not in accordance with the Rule 38 of the Rules of the Society. Rule 38 of the Rules of the Society provides as to how and in what manner the Rules of the Society could be amended. Rule 38 of the Rules of the Society as it existed prior to the amendment of 2007, reads as follows-

“38. These rules may be altered, amended or revised only at a meeting of the Society specially called for the purpose and then only if approved by at least three quarters of the members of the Society present at such a meeting.”

From a plain reading of the aforesaid rule it is apparent that any alteration, amendment or revision of the rules could be done only at a meeting of the Society specially called for the purpose and only after being approved by at least three quarters of the members of the Society present at such a meeting. We notice that there are two requirements to be fulfilled for carrying out any amendment in the rules of the Society. The first requirement is that it could be done in a meeting of the Society specially called for the purpose. This clearly means that any amendment in the rules has to be considered at a meeting specially called for the purpose, that is to say that in any meeting where other business is transacted, no resolution relating to amendment of the rules could be considered or passed. The second requirement under Rule 38 of the Rules is that it should be approved by at least three quarters of the members of the Society present at such a meeting.

Arguments have been led by the parties from both the sides in great detail with regard to the second requirement. The reason for this is that the Assistant Registrar and the learned Single Judge have held that the second requirement of Rule 38 of the Rules of the Society has been violated and not complied with. According to the learned Single Judge the requirement is that it should be approved by at least three quarters of the members of the Society and further that such three quarters of the members of the Society should be present in the meeting. On the other hand Sri Khare, learned Senior Counsel appearing for the appellants has urged that it is three quarters of the members of the Society present in a meeting which could pass the resolution for amendment in the rules. In our opinion, without going into the second requirement of Rule 38 of the Rules, the meetings considering and passing the resolution for amendment in the Rules would be invalid for non compliance of the first requirement itself. In this regard Sri A.K Mishra, learned counsel has taken us to various documents filed by the appellants along with the affidavit filed in support of the stay application. Annexure 4 to the affidavit is a notice dated 9.11.2004 for the meeting of the Society scheduled for 27.11.2004 The notice further refers to the business likely to be transacted in the said meeting. Agenda consists of 9 items. None of the items of the agenda refers to any business being transacted regarding amendment of the rules of the Society. However from a perusal of the said notice it appears that against item no. 8 which reads ‘Any other business with the permission of the chair’, a hand written note refers to two items (i) and (ii). The first one refers to review/amendment of Society Bye-laws, appointment of Sub Committee to prepare report/draft. The second note made against item no. 8 is with regard to the ‘members/membership fee’. Annexure 5 to the affidavit is the Roll Call and minutes of the meeting of the Society held on 27th November, 2004. Clause 14 of the minutes bears the heading ‘Any other business’. Sub clause (i) refers to amending the constitution of the Society. The resolution reads as under-

The Hony. Secretary, Mr. C.V Innes, highlighted the need to make suitable amendments in the Memorandum of Association and Articles of Association of the Allahabad High School Society, to adjust to current times and situation. The House resolved that a Sub-committee be formed, which would consist of Mr. C.V Innes, Principal, Boy;s High School and College and Col. John Taylor (Retd.). The Sub Committee would seek legal advise on the subject and propose necessary changes/amendments to the Constitution of the Allahabad High School Society. It was decided that suitable recommendations by the Sub-Committee shall be presented to the Chairman at an early date for approval and further action.

Annexure 6 to the affidavit is the notice dated 8.11.2005 for the meeting of the Society scheduled for 28.11.2005 The agenda consists of 11 items but does not refer to any amendment of the rules to be considered. Annexure 7 to the affidavit is the Roll Call and minutes of the meeting of 28.11.2005 Once again in Column No. 9 which bears the heading ‘Matters Arising’, sub clause (a) deals with amending the Constitution of the Allahabad High School Society. The said resolution is quoted hereunder-

“9. Matters Arising:

(a) Amending the Constitution of the Allahabad High School Society:

The matter regarding amending the Constitution of the Allahabad High School Society was taken up. The Chairman, Allahabad High School Society, Rt. Rev. A.R Stephen presented the report of the Sub Committee which had been prepared after studying & incorporating the suggestions of the members of Allahabad High School Society. The said report was read & accepted by the house.

Dr. S.D Chand, Secretary Diocesan Education Board suggested that the Constitution & Rules of the Allahabad High School Society should be amended by appointing a competent Amendment Committee by the Chairman. This point was agreed to for compliance and the Amendment Committee comprising of Mr. C.V Innes (Convenor), Retd. Col. J. Taylor (Secretary), Rev. G. Daud, Mrs. D. Innes Mrs., Mrs. P. David, Ms. N. Singh and Dr. L. Anthony, was thereafter appointed to meet and carry out further processing at the earliest.

The Chairman Rt. Rev. A.R Stephen stated that the draft of the amended constitution and rules be put before the house in the next general body meeting.”

Annexure 8 to the affidavit is the notice dated 16.11.2006 for the re-scheduled meeting of the Allahabad High School Society fixed for 23.11.2006 It does not refer to the previous notice nor does it refer to the agenda which may have been circulated. The appellants have thus, omitted to file the agenda for the meeting of 23.11.2006 Annexure 9 is the Roll Call and the minutes of the meeting. Again we find that under the heading ‘Matters Arising’, a resolution has been passed under Clause 9 thereof with regard to amending the constitution of the Allahabad High School Society. According to the resolution the draft of the amended rules, constitution, articles and bye laws were circulated and read and the house approved, endorsed and adopted the aforesaid draft rules (Annexure 1) with requisite majority. It further mentions that the Amending Committee was requested to prepare the final amended rules, constitution, articles and bye laws as per the approved draft and it was decided that the house shall specially meet in April/May 2007 to verify and assent by a special resolution, the final version thus prepared for its due statutory processing. Aforesaid resolution is quoted hereunder :

“Matters Arising:

The matter regarding amending the constitution of the Allahabad High School Society was taken up. The Amendment Committee tabled the draft of amended rules, constitution, articles and bye laws which were circulated and read. The house approved, endorsed and adopted the aforesaid draft rules, constitution, articles and bye laws (Annexure 1) with requisite majority.

Also the Amending Committee was requested to prepare the final amended rules, constitution, articles and bye laws as per the approved draft. It was decided that the house shall specially meet in April/May 2007 to verify and assent by a special resolution, the final version thus prepared for its due statutory processing.”

We also find that draft of the amended resolution has been annexed along with the said minutes. Thereafter Annexure 10 to the affidavit is a notice dated 9.5.2007 intimating for special general meeting to be held on 28.5.2007 The Agenda at time no. 4 mentions Amendments-Rules, Constitution, Bye Laws of the Allahabad High School Society. It does not contain any other business to be transacted. Annexure 11 to the affidavit is the papers relating to service of notice and the manner of dispatch. Annexure 12 to the affidavit is the minutes. According to Clause 4 of the Minutes which reads that amended Rules, Constitution and Bye Laws of the Allahabad High School Society were verified vis. a. vis. the prior approved draft accepted and unanimously assented for registration and other due statutory processes. The same is quoted hereunder:

“Amendment of Rules, Constitution and Bye Laws- The amended Rules, Constitution and Bye Laws of the Allahabad High School Society were verified vis.a.vis the prior approved draft (annexure 1 attached), accepted and unanimously assented by the quorum present, for registration and other due statutory processes. The house also affirmed that the existing constituency of the Governing Body shall be status quo until the next election.”

In the above backdrop the argument advanced is that according to the agenda of meetings of 27.11.2004, 28.11.2005 and 23.11.2006, these meetings were not convened specially for the purposes of amending the rules. In fact these meetings had been convened for transaction of the general business of the Society and in such a general meeting, the matter relating to amendment of the rules could not have been considered. It is further submitted that the effective resolution passed for approving the amendments in the rules was in the meeting dated 23.11.2006 which was also a general body meeting convened for transaction of the general business of the Society. The meeting of 28.05.2007 although specially convened for the purpose of considering the amendments in the Rules of the Society was in fact a meeting of confirming the resolutions passed in the meeting of 23.11.2006 He has although submitted that the papers relating to meeting of 28.11.2007 had been fabricated but nevertheless in view of the admitted position from the record of the appellants, as filed by them, without going into the question of fraud and interpolation, it is apparent that the first requirement under Rule 38 of the Rules stood clearly violated and therefore, all the meetings relating to amendments right from 2004 to 2007 were invalid and not in accordance with Rule 38 of the Rules.

In reply Sri Khare has submitted that it was not necessary to convene a meeting specially for the purposes of amending rules even for initiating the proposal or for consideration thereof. According to him the meeting of 28.5.2007 was the actual meeting in which amendments to the rules have been passed and that meeting had been convened specially for the said purpose and therefore, there was no illegality in the same and there was no violence to Rule 38 of the Rules.

We may notice here at the out set that this discussion is based upon the documents filed by the appellants before the Assistant Registrar, learned Single Judge and in this appeal. From the plain reading of the notice, agenda and the minutes of the meetings dated 27.11.2004, 28.11.2005 and 23.11.2006, in which sub committees were appointed and the amended draft rules had been approved, were the real meetings which considered firstly as to whether or not any amendment was required in the rules, secondly the draft rules were prepared by the committees appointed and lastly the draft rules had been approved in the meeting of 23.11.2006 If that be the case, then we are afraid that the appellants cannot allege that the meetings for amendment of the rules had been validly convened as per Rule 38 of the Rules. From the minutes recorded it is apparent that other general business had been transacted in all the three meetings with regard to the consideration of such items and also the amendment in the rules had been taken up under the heading ‘Mattes Arising’ and not as a specific item of the agenda. It is thus clear that firstly there was no agenda for considering the amendment in the rules in all the three meetings but despite the same the matter was discussed and approved and secondly the meetings were not convened specially for the purposes of considering the amendment in the rules.

Thus, not only for the reasons recorded by the learned Single Judge and the Assistant Registrar but also for the reasons recorded above we hold that the amendment in the Rules of the Society had not been carried out in validly convened meetings specially for the purpose as required under Rule 38 of the Rules of the Society.

We only mean by the above observation that the Registrar was primafacie satisfied with various instances on record, out of which we only mentioned as above and that satisfaction was recorded on facts which learned Single Judge also discussed, agreed and recorded his own finding. Such satisfaction recorded by the Assistant Registrar and learned Single Judge cannot be interfered with either on law or on facts.

Sri Mishra has also referred to the list of members to whom the notices had been issued with regard to the aforementioned three meetings of 27.11.2004, 28.11.2005 and 23.11.2006 According to him the notices were issued to same 15 members as mentioned in all the three notices. Admittedly, as per the rules the Collector Allahabad and the Commissioner, Allahabad who were Ex. Officio members of the Society no notice was sent to them and therefore, the meeting stood vitiated on that count also. The appellants have not given any reply to this submission and therefore, it is apparent from the record of the appellants that due notice to all the members of the Society was not given for the various meetings of the Society.

Thus also we find that the meetings which considered the amendment in the rules had not been validly convened. It may be noticed here that the minutes of these three meetings have also been registered on 30.5.2007 by the Assistant Registrar and by the impugned order he has cancelled such registration. Thus it is not only meeting dated 28.5.2007 alone which is under question but also the meetings of 27.11.2004, 28.11.2005 and 23.11.2006 which are relevant and their registration stood cancelled by the impugned order.

Sri Khare, learned Senior Advocate for the appellants has laid great emphasis on the point that the Assistant Registrar did not have any power to cancel the registration of the amendments in the Rules. Further according to him the Act does not confer any power on the Assistant Registrar to register the amendments. In our opinion, as we have already held above that the Assistant Registrar had no power to register the amendments, the question which would arise in fact is as to whether the Assistant Registrar could or could not disapprove the amendments. We have noticed that there is no specific power under the Act vesting any power in the Assistant Registrar to cancel the amendment. This does not mean that the Assistant Registrar is powerless in that regard. Under Section 24 of the Act he has very wide and varied powers of taking any action while examining the affairs of the society. The power exercised by the Assistant Registrar under Section 24 of the Act is wide enough to enable the Registrar to examine as to whether or not the society is functioning in accordance with its object and that there is no mismanagement. In the present case the Assistant Registrar has exercised only limited jurisdiction by issuing the directions for convening a fresh meeting by the Chairman i.e the Bishop of Diocese of Lucknow as per the Rules of the Society which existed prior to the amendments in question. The effective order passed by the Registrar is of disapproving the amendments in the Rules of the Society having been considered and approved in meetings of the Society not convened validly in accordance with the Rules. The Assistant Registrar could have exercised powers vested in him under Section 12-D of the Act for cancellation of the registration of the Society or for referring the matter to the Court for dissolution of the Society as envisaged under Section 13-B of the Act. However, the Assistant Registrar in the larger interest of the Society issued the directives to convene fresh meeting in accordance with the Rules of the Society. We thus find that the directives issued by the Assistant Registrar do not cause any prejudice to either of the parties. For sake of convenience and for ready reference, the operative portion of the impugned order of the Assistant Registrar dated 24.07.2007 is quoted herein under :

Further for sake of convenience to our understanding, the English translation of the aforementioned operative portion would read as under :

The proceeding for the amendment in the rules, constitution and bye-laws of the Committee, was registered on 30-05-2007. According to the proceedings registered, the process was initiated under Proposal No. 14 of the year 2004 and the report of the constituted Committee, after being accepted along with other proceedings approved by means of the proceeding held on 28-05-2007, was presented for registration. Besides the Chairman, the Recording Secretary and Honorary Secretary have on 25-12-07 put their signature on the proceeding, for completion of process of amendment and registration of the rules as mentioned in Proposal No. 9 whereof, “the Chairman Rt. Rev. AR Stephen along with all members of the Allahabad High School Society applauded the efficacy of the Amendment Committee”, and on other proceedings held on the said date. The Chairman, while recording the word ‘confirmed’ in his own handwriting, has again put his signature on that very proceeding. Together with the proceeding for amendment/modification in the rules, this proceeding signed on 25-12-07 was also registered on 30-05-2007 along with other proceedings. Simultaneously seeking registration of this proceeding signed on 25-12-07, shown to have taken place six months after the date of registration i.e 30-5-2007 along with other proceedings practically cannot be explained as to how and why such proceedings could be presented for registration along with other proceeding in which the amendments had been effected. From this lone proceeding itself it is proved that the Committee is being run in an arbitrary and undemocratic manner; and due to this reason, while the proceedings for amendment/modification of which registration was done on 30-05-07 being unlawful and improper are derecognized and their registration is cancelled under Section 12-D (b) of the Act in pursuance of notice issued under Section 12-D (b) of the Act.

Besides, in compliance with provisions of the Rules, 1952, a direction is given that the Bishop of Diocese of Lucknow, who besides being ex-officio member of the Committee is also its Chairman, shall, under the provisions of the amended Rules of 1952, convene the meeting of the General House as soon as possible, notifying all its members about all the situations, circumstances and the reasons through the Peon book or by registered post; and take a decision again on amendment in Rules and other proceedings. He shall present confirmation proceeding and the composition of the Management as per the structure as mentioned in the Rule 11 of the Rules of 1952. Besides, it is also directed that compliance with directions given by the office are duly ensured only in accordance with the Rules.

Thus, in compliance with the orders passed by Hon'ble High Court and Hon'ble Supreme Court, the complaints presented against the registration, done on 30-05-2007, of the proceeding held on 28-5-2007 and other proceedings concerning amendments, are hereby disposed of.

Further the present case we find that in the initial notice dated 01.10.2009 the Registrar referred to Section 24 of the Act. We further find that the Registrar directed the parties to give reply to the notices issued and to lead evidence and produce the relevant record relating to the Society. Series of notices were issued to which the parties had tendered their replies. It was in the discretion of the Registrar whether to summon the records of the Society or to record the statements on oath and further to seize the records. In the present case the Registrar apparently in its discretion/wisdom did not deem it necessary to record statements on oath or to seize the records as envisaged under Sub-sections (3) and (3-A) of Section 24 of the Act. He had however summoned the relevant records. Based upon the records produced before him and the records available in his office, he has proceeded to pass the order dated 24.07.2010, which was assailed in the writ petition. It is not in issue that the order passed by the Assistant Registrar was well within the scope of his powers vested under Section 24 of the Act. The Registrar chose to make the inspection or investigation himself and in that process issued notices also and called for the records. Thus, if we look at the order passed from this angle treating it to be one under Section 24 of the Act, it cannot be said to be without jurisdiction or beyond the scope/powers of the Registrar.

Merely because the Registrar in his order did not refer to Section 24 of the Act and only mentioned that it was exercising powers under Section 12-D of the Act, it cannot be said by the appellants that the order of the Assistant Registrar was without jurisdiction. Mere wrong quoting of a provision or non-quoting of a provision, cannot invalidate an order which is otherwise in accordance with law and also assigning reasons elaborately. In the present case we find that the Registrar although mentioned in the original notice that it was one under Section 24 of the Act but in his order omitted to quote the said section, cannot be a ground to assail its validity as a whole, particularly in the light of the directions issued to the Society to convene the meeting as per its Rules in as much as, the amendments were regarding the basic character and structure of the Society as was originally contemplated, on democratic lines.

Thus in view of the discussions made above we are of the view that the order of the Assistant Registrar dated 24.07.2010 was well within his powers vested in him under Sections 4-A and 24 of the Act.

The Assistant Registrar and the learned Single Judge have recorded specific findings that there has been interpolation in the records and a serious fraud has been committed by the appellants. Two aspects in this connection may be noted. Firstly that in the request for registration of the amendments in the rules under Section 4-A of the Act, vide the letter of the appellant no. 2 dated 29.05.2007, 7 documents are said to be annexed. At sl. no. 7 is the affidavit as per statute. This affidavit is said to have been sworn before the Notary on 30.05.2007 and as such could not have been filed on 29.05.2007 The second interpolation pointed out is that on 30.05.2007 the Assistant Registrar registered 5 resolutions of the Society, which include the resolutions dated 27.11.2004, 28.11.2005, 23.11.2006, 28.05.2007 and 30.11.2007 The finding is that how could a resolution of 30.11.2007 be registered as early as 30.05.2007

Sri Khare in his arguments with regard to first interpolation has submitted that no affidavit was required to be submitted while giving intimation for registering the amendments in the Rules of the Society under Section 4-A of the Act. According to him the affidavit was not required and as such even if it was attested on 30.05.2007, it should not make any difference. Further with regard to the registration of the resolution dated 30.11.2007 as early as on 30.05.2007, no reply has been tendered. We have gone through the said minutes of the meeting of 30.11.2007 and on the back of the last page of the minutes we find the seal of the office of the Registrar which refers to the minutes dated 30.11.2007 and its date of registration as 30.05.2007 This is an impossibility and is an apparent fraud and interpolation in the records not only of the Society but also in the office of the Assistant Registrar.

With regard to the question of opportunity having been denied to the appellants by the Assistant Registrar by not furnishing a copy of the representation/objections dated 19.06.2010 submitted pursuant to the order of the Apex Court, Sri Khare has submitted that the said representation has been considered and heavily relied upon by the Assistant Registrar as such the appellants were entitled to a copy of the same before it could be relied upon. In reply it has been submitted by the learned counsels for the respondents that the said representation dated 19.06.2010 was only with regard to the question of jurisdiction of the Assistant Registrar as to whether he could or could not deal with the merits of the resolution registered by him relating to amendments in the rules of the Society. The objection was purely relating to the legal submissions and did not raise any factual submissions. It is further submitted on behalf of the respondents that the appellants have failed to show any prejudice or substantial injustice having been cause to them on account of the non-service of the said representation/objections dated 19.06.2010 In rejoinder Sri Khare has submitted that once the Assistant Registrar had taken decision against the appellants by not only cancelling the registration of the various resolutions relating to the amendments in the rules of the Society but had also nullified the resolutions as such substantial injustice had been caused to the appellants by consideration of the said representation.

Having considered the submissions, in our opinion all the facts and legal submissions mentioned in the representation/objections dated 19.06.2010 had been raised earlier in the previous representations submitted by the respondents, copies of which had been supplied to the appellants along with a notice of the Assistant Registrar and therefore no prejudice was being caused to the appellants. They were well aware of the facts mentioned in the said representation. Merely because some authorities had been relied upon in the said representation it cannot be said that any prejudice had been caused. In any case the appellants had also filed their representation pursuant to the order of the Apex Court on 21.06.2010 before the Assistant Registrar and in which they had all the liberty to refer to the relevant facts, legal provisions and the authorities. We thus do not find any merit in the said argument. Even otherwise in view of the discussions made above by us with regard to the other aspects of the matter, we are not inclined to extend any benefit to the appellants on this score.

With regard to the submissions relating to violation of the principles of natural justice and fair play, the other submission is that the appellant no. 2 had submitted 8 affidavits before the Assistant Registrar in support of his case whereas the respondent no. 3 had submitted 5 affidavits of the members before the Assistant Registrar.

Assistant Registrar has discarded the affidavits submitted by the appellants and has relied upon the affidavits submitted by the respondent no. 3, even though the appellant no. 2 had disputed the genuineness of the said affidavits. According to Sri Khare in case the Assistant Registrar was not convinced with the affidavits submitted by the appellant no. 2 then he ought to have got the signatures verified by an expert from the admitted signatures of such deponents. He further submits that as the affidavits submitted by the respondent no. 3 were disputed, the signatures on those affidavits also ought to have been verified by the Assistant Registrar through some expert. The Assistant Registrar having failed to get the signatures verified committed error.

In our opinion, in view of the findings recorded by us that the meetings itself had not been validly convened as per the Rules of the Society, the orders passed by the Assistant Registrar and the learned Single Judge do not warrant interference and this question regarding violation of the principles of natural justice on both the counts would be of no help to the appellants. Thus, we are not inclined to accept the submissions at this stage.

Sri Khare has also submitted that the Assistant Registrar did not afford any oral opportunity of hearing after the order of the Apex Court dated 15.6.2010 was passed, which specifically granted liberty to further address the Assistant Registrar. Thus according to Sri Khare the order of the Assistant Registrar was not only violative of principles of natural justice and fair play but also in the teeth of the directions of the Apex Court. We have perused the representations submitted by the appellants on 21.6.2010 after the order of the Apex Court and in that no request/prayer was made for affording any further oral hearing. The appellants having himself not made any such request for oral hearing cannot be permitted to now raise such issue.

In any case the appellants have had enough opportunity before the learned Single Judge and before us to meet the points urged in the representation of the respondent no. 3 dated 19.06.2010 As such we are not inclined to entertain this argument nor do we find any merit in the same.

For the foregoing reasons this intra court appeal being devoid of merits is accordingly dismissed. 25.03.2011 pk/rps

Special Appeal No. 281 of 2011

Allahabad High School Society, Allahabad And Others v. State Of U.P And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Allahabad High School Society, Allahabad And Others v. State Of U.P And Others

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