Saji Koduvath, Advocate

Synopsis

• 1.      Introduction
• 2.      Article 19(1)(c) ‘Reasonable Restrictions’
• 3.      Management and Vesting of Property of Societies, Separate
• 4.      TN So. Regn. Act Provides for Compulsory Election
• 5.      Co-op. Registrar’s Powers Supervisory in Nature
• 6.      Art. 19 (1)(c) & Takeover – Considerations: Public interest
• 7.      Board of Trustees, Ayurvedic & Unani Tibia College Vs. State
• 8.      Take-Over: Enactment Struck Down
• 9.      Parliament Cannot Infringe Constil. Rights:  Damyanti’s Case
• 10.    Damyanti’s Case Distinguished in Subsequent Cases
• 11.    Authorities Required To Record Reasons
• 12.    Take-Over: Bad, Where No Provision in the Acts Concerned
• 13.    Co-operative Societies – Created by Statute
• 14.    A Member Cannot Assail Statutory Interference:
• 15.    Take-over and Appointment of Administrator
• 16.    Take-over: Balance Between Institutional and Public Interest
• 17.    Take Over: Management of Property, for a limited period
• 18.    Admission of New Members: State Cannot Compel
• 19.    Action of Legislature: If Violative of Article 14, Arbitrary
• 20.    Formation of Assons. – Different From Running Business
• 21.    Escheat

1. Introduction

Article 19(1)(c) of our Constitution guarantees freedom and right ‘to form associations or unions’. The right to ‘form’ association includes in itself the right for effective functioning of the association so as to enable it to achieve its lawful objectives.  Article 19 lays down

• Protection of certain rights regarding freedom of speech, etc. – 
• (1) All citizens shall have the right. –
  • (a)….  (b) …. 
  • (c) to form associations or unions, co -operative societies; 
  • (d) … (e) … (f) … (g) . … 
• (2) ….
• (3) … 
• (4) Nothing in Sub -clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.
• (5) … 
• (6) ….”

2. Article 19(1)(c) ‘Reasonable Restrictions’

The right to form associations is not absolute. It is not incapable of regulation; because, it is subject to ‘reasonable restrictions’, which the State can impose, as laid down in clause (4) of Article 19.[1] In A. Umarani Vs. Registrar, Co-operative Societies[2] the Apex Court has observed that except playing supervisory role, the State has no administrative control over the day-to-day affairs of a co-operative society. 

Following are the important Apex Court rulings on this point:

• Thalappalam Ser. Coop. Bank Ltd Vs. State of Kerala.[3]
• Dharam Dutt Vs. Union of India.[4]
• SP Mittal V. Union of India.[5]
• LN Mishra Institute of Economic Development Vs. State of Bihar.[6]
• Daman Singh  Vs. State of Punjab.[7]
• Kamareddy Suryanarayana Vs. District Co-operative Officer[8]
• All India Bank Employees’ case.[9]
• The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi.[10]
• State of Madras v. V.G. Row.[11]

3. Management and Vesting of Property of Societies[12], Separate

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh[13] it is observed in para 27:

• “If what is vested in the College Committee or its governing body is a right of management simpliciter, there is no question of the members of the society or the members of the governing body being beneficially interested in its property. It necessarily follows that by the fact of appointment of a treasurer, there can be no deprivation of the society of its rights in property. The consequence, which would flow on the appointment of a treasurer by the Government under the provisions of the Charitable Endowments Act, would be that he will take charge of the management of the properties held by the society. There is no divesting of the rights of the society in its properties. As already stated, what all the society is deprived of would be right of management which cannot be equated to any right in the property.”[14]

In Rev. Father Farcisus Mascarenhas Vs. The State of Bombay,[15] it was contended that the Roman Catholic Churches were governed by the canon law and that the provisions of the Bombay Public Trusts Act which mandated registration  under the provisions of the Act contravened the fundamental rights of the Catholics; but, it was observed in the judgment that the provisions of the Bombay Act did not affect the fundamental rights of the Roman Catholics to hold property but they could only administer the property of the Church in conformity with law.

4. T.N. Societies Registration Act Provides for Compulsory Election

No Violation of ‘Fundamental Right to Form Association’

No Constitutional Guarantee – Without Interference by Law

Deviating from the (Central) So. Registration Act, 1860, T.N. Societies Registration Act, 1975, Sections 15(3) and 15(4) provide that the office of any member of the Committee cannot ensure beyond a period of three years and thereafter the election process has necessarily got to be adopted. S. 26(4) enables the Registrar to depute an officer to be present at the general meetings of the Institution and the Charitable Society.

In Periyar Self-respect Propaganda Institution, Trichy Vs. State of TN[16] the constitutional validity of these provisions were upheld observing the following:

• “By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society arid certainly it cannot assume the colour of a fundamental right. …..  As rightly contended by the learned Advocate General appearing for the State, neither the Institution nor the Charitable Society, nor the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterised as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. This is not a case where the composition of the association is being altered. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”

5. Co-op. Registrar’s Powers Regulatory or Supervisory in Nature

Our Apex Court in Thalappalam Ser. Co-op. Bank Ltd. Vs. State of Kerala[17] observed as under:

• “34. … Powers exercised by the Registrar of Co-operative Societies and others under the Co-operative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled.”[18]

6. Art. 19 (1)(c) & Takeover – Considerations: Public interest[19]

Within its sphere of activity, an association has the right of internal management. Nevertheless, if its functioning is deleterious to the interests of its members or the general public,[20] the association-right in the Constitution of India [Art. 19 (1)(c)] does not render the institution immune from take-over of management by the State or the executive agencies invoking the powers given in the statute concerned,[21] or by proper legislation.[22] The existence of the association-right, ipso facto, is no guarantee that if the functioning of  the  institution  is  not  conducive  to  its  objects,  it  would nevertheless be left alone.[23] 

The Supreme Court, in LN Mishra Institute of Economic Development and Social Change, Patna Vs. State of Bihar,[24] upheld the Constitutional validity of an Ordinance (later replaced by an Act) under which an Institute (Lalit Narain Mishra Institute of Economic Development and Social Change, Patna – started by a Society with the same name) was taken over by the State Government ‘to ensure a high level of educational and training facilities and the co-ordination of the training with important industrial and business units’. The Ordinance had been challenged alleging mala fides, and on the ground of infraction of fundamental right to form an association under Article 19(1)(c). It is held:

• “The fundamental right guaranteed under Art.19 (1)(c) does not extend to or embrace within it the objects or purposes or the activities of an association. In other words, it does not carry with it a further guarantee that the objects or purposes or activities of an association so formed shall not be interfered with by-law except on grounds as mentioned in Article 19 (4), viz., sovereignty and integrity of India or public order or morality.”

Our Apex Court, in Dharam Dutt Vs. Union of India,[25] summarised the finding in L.N. Mishra Institute as under:

•  “All assets and properties were vested in the State Government, and the Commissioner was deemed to have taken charge of the Institute. As all incidence of ownership and management were taken over by the State, what was left to the Society was paper ownership and management. Turning down the challenge, this Court held that the impugned Ordinance and the Act merely took over the Institute. Although, the name of the Society and of the Institute are the same, they were two different entities. The impugned legislations took over the Institute and not the Society. No restriction whatsoever was imposed on the functioning of the Society. The provisions of the Act referred to the Institute. The Institute constituted one of the activities of the Society. The petitioner-Society had constituted itself into an association in exercise of the fundamental right conferred by Article 19(1)(c). That right of that Society remains unimpaired and un-interfered with by the impugned Act and Ordinance.”

In OK Ghose Vs. EK Joseph[26] the Constitution Bench of our Apex Court held that the restriction placed on Government Servants to form unions infringed the fundamental right of the Government servants to form associations or unions guaranteed under Art.19 (1) (c) and could not be justified as a reasonable restriction imposed in the interest of public order under Art.19 (4). But, the Court reiterated what had been said by other Constitution Benches earlier that the rule prohibiting Government Servants from striking was valid as there was no fundamental right to strike.

7. Board of Trustees, Ayurvedic & Unani Tibia College Vs. State

In this celebrated decision[27] our Apex Court upheld the right of State Legislature to enact The Tibia College Act, 1952 with respect to the management of a registered society. The enactment was necessitated when the College had been mismanaged and struggle ensued between the trustees. 

8. Take-Over: Enactment Struck Down

As Failed to Make Provision for Restoration of Elected Body

In Asom Rastrabhasa Prachar Samiti Vs. State of Assam,[28] the impugned Act was enacted to meet a contingency for taking over of the management of the Prachar Samiti, temporarily. However, it failed to make any provision for the restoration of the elected body in due course. Not only were new members introduced into the Samiti, no norms were laid down for nominating the government nominees (who could be any one), and the elected members were kept away from the control of the Samiti. On the facts of the case and the implications of the provisions contained in the impugned enactment, the Court concluded that the right of association was virtually taken away; and in the name of temporary control and management on the affairs of the society, what was done was a permanent deprivation. In response to a query raised by the Court it had been stated by the State that the State had no desire to restore the Samiti. The impugned legislative provision was, therefore, struck down as violative of Article 19(1)(c) of the Constitution.

9. Parliament Cannot Infringe Constitutional Rights:  Damyati’s Case

The Hindi Sahitya Sammelan Act considered in Smt. Damyanti Naranga Vs. The Union of India,[29] compulsorily altered the composition of the Sammelan, a society registered under the Societies Registration Act, 1860. Our Apex Court held that the Act was a breach of the ‘right to form association’; because, it violated the composite right of forming an association and the right to continue it as the original members desired. The Parliament had enacted the Hindi Sahitya Sammelan Act under which outsiders were permitted to become members of the Sammelan, without the volition of the original members.

It was held that the Parliament cannot alter the composition of the society itself. The members, who voluntarily formed the Association, cannot be compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. The Constitution confers an association and its members the right to refuse membership to those who are not acceptable to the existing body of members.

The alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders.

The Court held further:

• “The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any opinion being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association”.[30]

10. Damyanti’s Case Distinguished in Subsequent Cases

Damyanti’s case is distinguished in several cases, including the following cases, pointing out that the Government had, in that case, interfered in the management of the Society:

• Rajasthan Cricket Association case;[31]
• Delhi Police, NKG Sangh case;[32]  
• Bhandara Distt. Central Co-op Societies case;[33] and 
• Dharam Dutt’s case.[34]

In Daman Singh Vs. State of Punjab,[35] Damyanti’s case was distinguished on the ground that it was a case where an unregistered society was, by statute, converted into a registered society which bore no resemblance whatever to the original society; and that the new members could be admitted in large numbers so as to reduce the original members to an insignificant minority. In State of UP Vs. COD Chheoki Employees’ Co-op. Society Ltd[36] it was pointed out that the Hindi Sahitya Sammelan Act, considered in Damyati’s case, was violative of Article 31 of the Constitution of India, as it stood then.

The composition of the society itself was transformed by the Act and the voluntary nature of the association of the members who formed the original society was totally destroyed. And, it contravened the fundamental right guaranteed by Article 19(l)(f).[37]

11. Authorities Required To Record Reasons

It has been held in Km. Neelima Misra Vs. Dr. Harinder Kaur Paintal[38] and S.N. Mukherjee Vs. Union of India[39] that an administrative order which involves civil consequences must give reasons. S.N. Mukherjee’s case it was observed:

• “For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision”.

In Union of India Vs. E.G. Nambudiri[40] it is observed:

• “Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered legal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records. Reasons are not necessary to be communicated to the Government servant. If the statutory rules require communication of reasons, the same must be, communicated but in the absence of any such provision absence of communication of reasons does not affect the validity of the order”.

12. Take-Over: Bad, Where No Provision in the Acts Concerned

In IIT College of Engineering Vs. State of HP[41] our Apex Court did not approve the take-over of the management of an unaided private college by the Administrator as there was no provision in the AICTE Act or the H.P. Education Act or the University Act authorizing such an action. The Court observed that the imposition of an Administrator to take over the reins of administration for an indefinite period[42] would undoubtedly amount to interference with the right of administering and managing a private educational institution which is now recognised to be a part of the fundamental right under Article 19(l)(g) as held by this Court in T.M.A. Pai Foundation Vs. State of Karnataka.

13. Co-operative Societies – Created by Statute

Co-operative societies being creatures of the statute, once a Co-operative Society is formed and registered, the rights of the society and that of its members stand abridged by the provisions of the Act. The activities of the societies are controlled by the statute. Therefore, there cannot be any objection to statutory interference with their composition or functioning merely on the ground of contravention of individual’s right of freedom of association by statutory functionaries.[43]

14. A Member Cannot Assail Statutory Interference:

In Daman Singh Vs. State of Punjab[44] it is held, distinguishing Smt. Damyanti Naranga Vs. The Union of India, [45] as under:

• “In the cases before us we are concerned with Co-operative societies which from the inception are governed by statute. They are created by statute, they are controlled by statute and so, there can be no objection to statutory interference with their composition on the ground of contravention of the individual right of freedom of association.”[46]

Our Apex Court further held that once a person becomes a member of a Co-operative Society, he loses his individuality qua the Society and he has no independent rights except those given to him by the statute and the bye laws. This view has also been approved in State of UP Vs. COD Chheoki Employees’ Coop. Society Ltd.[47] wherein our Apex Court has held that no individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.

15. Take-over and Appointment of Administrator: Allowed Prayer

For No Action by Authorities, in spite of Mismanagement.

In a Public Interest Litigation in Sanjay Gupta Vs. State of M.P.[48] it was pleaded that due to irregularities and mismanagement of the society the future of near about 1200 students who were getting education in the college and schools run by a Society was in dark. The petitioner prayed to takeover the society and to appoint an administrator. The Court found that in spite of the adverse reports, no action had been taken by the authorities. Observing that the right to receive proper education is a part and parcel of Article 21 of the Constitution and considering the judgment of the Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal[49] it was held that a writ petition in the shape of PIL was maintainable.

The Court appointed the Additional Collector, Gwalior as Administrator of the Society and gave directions for election and investigation in regard to financial irregularities in the light of Sec. 32 and 33 of the M.P. Societies Registrikaran Adhiniyam, 1973.

16. Take-over: Balance Between Institutional and Public Interest

In Dharam Dutt Vs. Union of India[50] the impugned legislation was held to be a reasonable legislation enacted in the interest of the general public and to govern an institution of national importance, and therefore, it was found to be valid.

It is held in this decision:

• “The new body takes over the activities of the pre-existing society by running the Institution which too is known as ICWA. So far as the society ICWA is concerned, it has been left intact, untouched and un-interfered with. There is no tampering with the membership or the governing body of the society. The society is still free to carry on its other activities. No membership of the old society has been dropped. No new member has been forced or thrust upon the society. The impugned legislation nominates members who will be members of the council, the new body corporate, different from the society. The pith and substance of the impugned legislation is to take-over an institution of national importance and an individual activity which would fall outside the purview of these Articles.”

Gandhi Harijan Ucchar Madhyamik Vidyalay Vs. Director of Education,[51] arose when the management of a school was taken over under the Delhi School Education Act, 1973, after issuing show cause notice, pointing out confrontation between the management of the school and a section of the teaching staff as also .the conflict between the management of the school and the authorities. It was observed that taking over of management of the school would involve a conflict between individual or institutional interest on the one hand, and public interest, which is sought to be served by the takeover, on the other. There is the imperative need to balance the two requirements. It was observed:

• “While it is not possible to put the conditions which may justify a takeover of a management in the strait-jacket of a judicially evolved definition, there could be no doubt that the takeover of a management of an institution would, ordinarily, be resorted to where other measures to deal with the affairs of an institution complained of, have failed to achieve the desired result.”

17. Take Over Management of Property, for a limited period:

In SP Mittal Vs. Union of India,[52] the Constitution Bench of our Apex Court held, inter alia, that assuming but not holding that the Society or Auroville were a religious denomination, the Auroville (Emergency Provisions) Act,  which took over the management of Auroville, for a limited period, was not hit by Article 25 or 26. It did not curtail the freedom of conscience and the right to freely profess, practice and propagate one’s own religion. It was observed in this case that ‘the right of management in matters of religion of a religious denomination’ under Article 26(b) was not taken away by this enactment; what was taken away was the right of management of the property of Auroville which was a secular matter. So also the Act did not curtail the right of any section of citizens to conserve its own language, script or culture conferred by Article 29. An activity, secular in nature, though assumed to be of the Society or the organization to be of religious denomination, did not adversely affect the freedom of conscience and the right to freely profess, practice and propagate one’s own religion. The Constitution Bench has drawn a distinction between such activities of the institution which would necessarily fall within the purview of Articles 25, 26 or 29.

It is observed: The disciples and devoted followers of Sri Aurobindo formed the Aurobindo Society in Calcutta and got it registered as a Society with the object of preaching and propagating the ideals and teachings of Sri Aurobindo and the Mother. The Society for its Auroville project received grants and subventions from UNESCO and also from the Government of India. However, after the death of the Mother, complaints started pouring in with the Central Government which, on enquiry, revealed mismanagement of the affairs of the Society, misuse of the funds thereof and diversion of the funds meant for Auroville to other purposes. There was in-fighting between the groups of members and the situation went out of control. The Auroville (Emergency Provisions) Ordinance, 1980, was promulgated followed by an Act, whereby the management of Auroville was taken over, though for a limited period. The constitutional validity of the Act was challenged on the ground that Articles 25, 26 29 and 30 and also Article 14 were infringed; and that the Parliament had no legislative competence to enact the said Act.

18. Admission of New Members: State Cannot Compel

What is in the interest of the society is primarily for the society alone to decide and it is not for an outside agency to say.[53]

The bye laws of a Society or a Club prescribe the qualifications of the Members to be admitted. They are in the nature of contract between the members. Therefore the right of admission of new members also remains at the will and option of the members.[54] The State or an enactment cannot compel admission of members, contrary to the bye laws of a Society.[55]

It is held in A P Dairy Development Corporation Vs. B Narasimha Reddy[56] as under:

• “It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires of Article 14 of the Constitution …. The constitutional right to freely associate with others encompasses associational ties designed to further the social, legal and economic benefits of the members of the association. By statutory interventions, the State is not permitted to change the fundamental character of the association or alter the composition of the society itself. The significant encroachment upon associational freedom cannot be justified on the basis of any interest of the Government. …  However, when the association gets registered under the Co-operative Societies Act, it is governed by the provisions of the Act and rules framed thereunder.”

It held further: 

• “Importing the fiction to the extent that the societies registered under the Act 1995, could be deemed to have been registered under the Act 1964 tantamount to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations.”

19. Action of Legislature: If Violative of Article 14, Arbitrary

When the association/society has an option/choice to get it registered under a particular (Co-operative Societies’) statute, [57] if there are more than one statute operating in the field, the State cannot force the association/society to get itself registered under a statute for which the association/society has not applied. If the State does so, it will ‘violate Article 19(1)(c) of the Constitution of India’.  It is not permissible in law to do something indirectly, if it is not permissible to be done directly.’[58]

20. Formation of Associations Is Different From Running Business

The right of the citizens to form the association is different from running the business by that association. Therefore, right of individuals to form a society has to be understood in a completely different context. A fundamental right to form the association cannot be coupled with the fundamental right to carry on any trade or business. [59]  After an Association has been formed and the right under Art. 19(1)(c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire.[60]

In TK Rangarajan Vs State of Tamil Nadu[61] the Supreme Court has held that the right to form an association does not carry with it the right to strike work.

21.  Escheat

If a club or society is defunct and no one claims that the club or society functions, the principles and law on escheat allows the vesting of property in Government. But in case of dispute, the onus will be heavy on the State to make out a case of escheat or bona vacantia. Though only a few members of the society  have shown any interest in matters pertaining to the society for 36 years or so, it might  still not be presumed that the society was defunct that would warrant dissolution under the So. Rgn. Act.[62]

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[1]      Darius Rutton Kavasmaneck Vs. Gharda Chemicals: 2014 AIR (SCW) 6441, 2015-188 Comp. Cases 291

[2]      AIR 2004 SC 4504 

[3]      2013 (16) SCC 82: 2013 Sup AIR (SC) 437; 2013 AIR(SCW)  5683

[4]      AIR  2004 SC 1295

[5]      AIR 1983 SC 1

[6]      AIR 1988 SC 1136

[7]      AIR 1985 SC 973

[8]      AIR 1976 SC  340

[9]      AIR 1962 SC 171

[10]    AIR 1962 SC 458

[11]    AIR 1952 SC 196

[12]    See Chapter: Vesting of Property.

[13]    AIR 1958 AP 773

[14]    Quoted in: Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.

[15]    62 Bom LR 790

[16]    AIR1988 Mad 27

[17]    Thalapalam Service Co Operative Ltd Vs. Union of India: AIR 2010 Ker  6.         Appeal Judgment: Thalappalam Ser. Coop. Bank Vs. State of Kerala: 2013 (16) SCC 82; 2013 Sup AIR (SC) 437; 2013 AIR (SC) (CIV) 2758, 2013 AIR(SCW)  5683.

[18]    See Chapter: Effect of Registration & Incorporation

[19]    See: Tika Ramji’s case: AIR 1956 SC 676;          P. Balakotaiash’s case: AIR 1958 SC 232; All India Bank Employees’ case: AIR 1962 SC 171;           Balmer Lawrie Workers Union’s case: AIR 1985 SC 311;          Daman Singh  Vs. State of Punjab: AIR 1985 SC 973.

[20]    P K Dash, Advocate Vs. Bar Council of Delhi: AIR 2016 Del 135.

[21]    By virtue of Article 12.

[22]    The Board of Trustees, Ayurvedic And Unani Tibia College Vs. The State: AIR 1962 SC 458; S.P. Mittal vs. UOI: AIR 1983 SC 1.

[23]    P K Dash, Advocate Vs. Bar Council of Delhi: AIR 2016 Del 135; Daman Singh  Vs. State of Punjab: AIR 1985 SC 973. Also see: L.N. Mishra Institute of Econ.Development Vs. State of Bihar: AIR 1988 SC 1136; Dharam Dutt Vs. Union of India: AIR  2004 SC 1295:  S.P. Mittal Vs. Union of India AIR 1983 SC 1: Gandhi Harijan Ucchar Madhyamik Vidyalay Vs. Director of Education:  AIR  1977 Del 240.

[24]    AIR  1988 SC 1136

[25]    AIR 2004 SC 1295. It followed SP Mittal V. Union of India: AIR 1983 SC 1.

[26]    AIR 1963 SC 812

[27]    AIR 1962 SC 458

[28]    AIR 1989 SC 2126.

[29]    AIR 1971 SC 966.

[30]    Quoted in A P Dairy Development Corpn Vs. B Narasimha Reddy: AIR 2011 SC 3298.

[31]    Rajasthan Cricket Association Vs. State of Rajasthan:   AIR 2005 Raj 144.

[32]    Delhi Police Non Gazetted Karmachari Sangh Vs. Union Of India: AIR 1987 SC 379

[33]    AIR 1993 SC 59

[34]    Dharam Dutt Vs. Union of India: AIR  2004 SC 1295

[35]    AIR  1985 SC 973.         See also: Sumangalam Hous. Soty Vs. Suo Motu High Court of Gujarat: AIR  2007 SC 671;        Zoroastrian Co Operative Housing Society Vs. District Registrar: AIR  2005 SC 2306.

[36]    AIR 1997 SC 1413

[37]    See also: L.N. Mishra Institute of Economic Development and Social Change, Patna Vs. State of Bihar:  AIR 1988 SC 1136.

[38]    AIR  1990 SC 1402

[39]    AIR  1990 SC 1984

[40]    AIR 1991 SC 1216

[41]    (2003) 7 SCC 73)

[42]    See also: Shri Rangaswami Vs. The Sagar Textile Mills:AIR 1977 SC 1516;         State of Uttar Pradesh Vs. Jogendra Singh:  AIR 1963 SC 1618.

[43]    A P Dairy Development Corporation Vs. B Narasimha Reddy: AIR 2011 SC 3298

[44]    AIR 1985 SC 973

[45]    AIR 1971 SC 966.

[46]    Quoted in Sumangalam Co-op Housing Society Ltd Vs. Suo Motu High Court of Gujarat: AIR  2007 SC 671;         State of U.P. Vs. C.O.D. Chheoki Employees’ Coop. Society Ltd : AIR 1997  SC  1413;         Zoroastrian Co-op. Housing Society Vs. District Registrar AIR 2005  SC  2306.

[47]    AIR 1997  SC  1413:         Followed in Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar, Co-op. Societies AIR 2005  SC  2306;        Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774;        Chandigarh Housing Board Vs. Devinder Singh: AIR 2007 SC 1723.

[48]    2014-2 MPLJ 520

[49]    (2010) 3 SCC 402

[50]    AIR  2004 SC 1295

[51]    AIR  1977 Del 240

[52]    AIR 1983 SC 1.

[53]    State of Maharashtra Vs. Karvanagar Sahakari Griha (2000) 9 SCC 295;        Zoroastrian Co -operative Housing Society Vs. District Registrar AIR  2005 SC 2306.

[54]    Damyanti Naranga Vs. Union of India: AIR 1971 SC 966;        Daman Singh Vs. State of Punjab AIR 1985 SC 973

[55]   Zoroastrian Co -operative Housing Society Vs. District Registrar AIR  2005 SC 2306.

[56]    AIR 2011 SC 3298

[57]    A P Dairy Development Corn. Vs. B Narasimha Reddy: AIR 2011 SC 3298.

[58]    See: Sant Lal Gupta Vs. Modern Co-op. Group Housing Society: JT 2010 (11) SC 273

[59]    Tata Engineering & Locomotives Vs. The State of Bihar:  AIR 1965 SC 40;        AP Dairy Devlopnt. Corpn. Vs. B Narasimha Reddy: AIR 2011 SC 3298.

[60]    Smt. Damyanti Naranga Vs. The Union of India: AIR 1971 SC 966

[61]    AIR 2003 SC 3033

[62]    Mrigan Maity Vs. Daridra Bandhab Bhandar: 2011-4 Cal LT.

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Relevant provisions of Kerala Land Reforms Act (on Purchase Certificate,  Plantation-Exemption & Ceiling Area) in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Civil Rights and Jurisdiction of Civil Courts
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• Res Judicata and Constructive Res Judicata
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Vesting of Property in Societies and Clubs
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features

Trusts/Religion

• Philosophy of Idol Worship
• Vesting of Property in Public Trusts
• Dedication of Property in Public Trusts
• Is an Idol a Perpetual Minor?
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Public & Private Trusts in India.
• What is Trust in Indian Law?
• Incidents of Trust in Clubs and Societies
• Vesting of Property in Trusts
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional.

Saji Koduvath, Advocate

Synopsis

• 1.      Principles of General Election: Extended in General
• 2.      “Democracy” and “Free and Fair Election”
• 3.      Holding Annual General Meeting is Statutory; Election Not
• 4.      Permanent Gov. Body and Right of Vote to Life-Members
• 5.      No Fundamental Right or Common Law Right to Contest
• 6.      Candidature:  An Individual Membership Right
• 7.      Definition of ‘Member’ & Right to Vote
• 8.      Non-Payment of Subscription & Right to Vote in Election
• 9.      T.N. So. Regn. Act Provides for Compulsory Election
• 10.    Strict Pleading and Standard of Proof
• 11.    Validity of Election: Jurisdiction with Courts
• 12.    Courts Sparingly Exercise Jurisdiction
• 13.    Right To Vote or Stand as a Candidate, Not a Civil Right
• 14. Right to Challenge an Election Is Not a Common Law Right
• 15.    Locus Standi of a Member to Challenge Election
• 16.    Individual Can Maintain Cause of the Collective Body 
• 17.    Individual and Corporate Membership Rights
• 16.    Election Process
• 17.    Powers of a Returning Officer
• 18.    Duties of Returning Officer
• 19.    Ordinarily, Courts will not Interfere withElection Process
• 20.    Jurisdiction of Civil Courts is ‘Rather Limited’: Principles
• 21.    Standard of Proof in Election Matters:
• 22.    Temporary Injunctions
• 23.    Technicalities of Election Petitions
• 24.    Instances of Courts Interference before Completion
• 25.    Court Interfere for Fair and Impartial Election
• 26.    No Question of Estoppel if inherent illegality
• 27.    Nomination Paper Rejected: Writ Petition not Maintainable
• 28.    Electoral Roll:  Illegality in Preparation: Remedy
• 29.    Electoral Roll:  Illegality in Preparation: Courts Interfere
• 30.    Electoral Rolls: Non-inclusion: Courts Will Not Interfere
• 31.    Electoral Roll: Preparation on Invalid Provisions
• 32.    Electoral Roll: Election on Nonexistent Rules
• 33.    Acceptance of List of Gov. Body District Registrar – Effect
• 34.    Section 25 of So. Regn. Act as Amended by State of U.P
• 35.    Non-convening of the Meetings and Acquiescence
• 36.    Courts Order Election and Appoint Receivers
• 37.    If Violation of Bye laws Court Sets Right the Illegalities
• 38.    Effect of Failure to File Documents u/s 4

Provisions of the Societies Registration Act, 1860:

• 2. Memorandum of association: The memorandum of association shall contain the following things, that is to say, the name of the society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.
• 4. Annual list of managing body to be filed: Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of joint-stock Companies, of the names, addresses and occupations of the governors, council, directors, committee or other governing body then entrusted with the management of the affairs of the society.
• 15.Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
• Disqualified members: But in all proceedings under this Act, no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.

1. Principles of General Election Extended to Elections in General

The principles of law under the Representation of People Act, 1951 have been extended by our courts to elections in general[1] including that in Societies and Educational Institutions.[2]

2. “Democracy” and “Free and Fair Election”

‘Democracy’ and ‘free and fair election’ are inseparable twins. If no other authority is expressly or impliedly constituted by the bye laws of an association, the responsibility to conduct the election vests with the managing body that be in power.

In Rameshwar Prasad Vs. Union of India,[3] our Apex Court held as under:

• “…Therefore, the well recognised position in law is that purity in the electoral process and the conduct of the elected representatives cannot be isolated from the constitutional requirements. ‘Democracy’ and ‘free and fair election’ are inseparable twins. There is almost an inseverable umbilical cord joining them. In a democracy the little man-voter has overwhelming importance and cannot be hijacked from the course of free and fair elections…….”

In KihotoHollohanVs.Zachillhu[4] it is held by the Supreme Court:

• “Democracy is a part of the basic structure of our Constitution; and rule of law and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.”

In NimbaRajaram Mali Vs. Collector, Jalgaon[5] held as under:

• “In a democratic society what is important is the Will of the majority and the elected representatives must honour the will of the majority. It is immaterial to analyse and debate on the reasons behind the will of the majority or the specific reasons for such will being expressed. The will of the majority is of paramount importance and it must be respected by all elected representatives responsible for the governance of such democratic institutions. … Unless it is shown that while passing such a resolution of No Confidence Motion, there was flagrant violation of any of mandatory procedure laid down, such a resolution cannot be interfered with by the Court or statutory authorities adjudicating such disputes.”

3. So. Regn. Act: Holding Annual General Meeting is Statutory; Election Not

Sec. 4 of the Societies Registration Act, 1860 postulates holding of Annual General Meeting. These provisions (also the Memorandum and Articles of Association of the society) as to holding Annual General Meetings, are mandatory; and not directory.[6]As per Sec. 2 of the Societies Registration Act the management of the affairs of a society is entrusted with the governing body.  The rules of the society have to direct the details of such entrustment.

It is pertinent to note that the Societies Registration Act, 1860 does not specifically direct ‘election’ of the governing body. But various States’ amendments (and State-Acts) provide for the same. The mode and modalities of formation of the governing body is determinedly left,under Sec. 16, to the ‘Rules and Regulations of the society’.

Sec. 16 reads:

• Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Article 243ZK of the Constitution Mandates Election in Co-operative Societies

Part IXBof the Constitution of India,that deals with the Co-operative Societies, is incorporated by the 97^th Amendment of the Constitution. Article 243ZK, under Part IXB, reads as under:

•  “243ZK. (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of the members of the outgoing board.
• (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
• Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such election.”

4. Permanent Governing Body and Right of Vote to Life-Members

Holding election in a society (not Co-operative Societies) being not statutory, it can be demonstrated that the requirements in the definition of a member in Section 15 (payment of subscription and signature in the roll/list of members) do not control the right to vote in an election and to stand as a candidate (an individual membership right). It is also noteworthy that the definition of ‘Member’ (in Sec.15) is not exhaustive; and it is limited to ‘for the purposes of this Act’ alone. It is clear that it is a matter left for the bye laws. 

Sec. 15 reads as under:

• Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
• Disqualified members:…. …

If the provisions in the bye laws of a Society gives right of vote to the life-members or honourary-members, who have not signed the roll/list of members, or even members in arrears, they may be valid. It can as well be argued that in case the bye laws of a society provide for permanent governing body, without an election, the same (so also nomination of governing body by an ‘outsider’) will not be illegal; and it may not be legitimate to argue that the provisions of such bye laws are unreasonable or opposed to ‘public policy’[7] on the premise that bye laws of a society or a club is a contract[8] amongst its members.

The above argument may be countered by urging that when a person becomes a member of the society, he would have no independent rights, and lose his individuality[9] qua the society except those that are given to him by the statutes concerned and bye laws;[10] and the rights of members merge in the rights of the society.[11] In State of UP Vs. CD Chheoki Employees Co-operative Society,[12] our Apex Court explicated it with the analogy that the stream cannot rise higher than the source.

7. Disqualified Members

As shown above, the definition of ‘Member’ (in Sec.15) in the Societies Registration Act, 1860, is not exhaustive, as it is ‘for the purposes of this Act’alone.

The second limb of Section 15 reads as under:

• Disqualified members: But in all proceedings under this Act, no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.

The words in the second limb of Section 15, refers to ‘all proceedings under this Act’.Therefore, the disqualifications (in votingand counting as a member)are confined[13] to the activities enjoined in the Act alone –that is, to take part in the meeting (i) to make bye laws (S. 9), (ii) to amend the ‘purposes’ (S. 12), (iii) to take decision to ‘amalgamate’ with another society (S.12), and (iv) for dissolution (S. 13).

The wording, ‘whose subscription at the time shall have been in arrears for a period exceeding three months’, may also support the view that there can be ‘permanent members’.

5. No Fundamental Right or Common Law Right to Contest Election

 The rights of a person to contest an election or to challenge it is neither a fundamental right nor a common law right; but are statutory rights[14]or rights originate from the bye laws of an association.[15]

6. Candidature:  An Individual Membership Right

Right to stand as a candidate for election as a Director of the Company is well accepted as an individual membership right.[16] Our courts have held that the general principles governing the individual membership rights, and right of suit, of an individual share holder (or a member) of the company would apply to the members of societies or clubs also.[17]

8. Non-Payment of Subscription & Right to Vote in Election

Section 15 of the Societies Registration Act does not direct expulsion or removal of member from the society for nonpayment of subscription; in any case, unless an opportunity of hearing is given to the member.[18] Section 15 of the Societies Registration Act only lays down that such member cannot be entitled to vote or participate in the meeting. However, that does not mean that notice of the meeting itself should not be issued to him.

9. T.N. Societies Registration Act Provides for Compulsory Election

Deviating from the (Central) So. Registration Act, 1860, T.N. Societies Registration Act, 1975, Sections 15(4) provides that ‘the term of office of the members of the committee shall not exceed three years from the date of their appointment’.S. 26(4) enables the Registrar to depute an officer to be present at the general meetings of the Institution and the Charitable Society.

In Periyar Self-respect Propaganda Institution, TrichyVs. State of TN[19] the constitutional validity of these provisions were upheld observing the following:

• “By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society arid certainly it cannot assume the colour of a fundamental right. …..  As rightly contended by the learned Advocate General appearing for the State, neither the Institution nor the Charitable Society, nor the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterised as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. This is not a case where the composition of the association is being altered. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”

10.Strict Pleading and Standard of Proof

An election petition is a strict statutory proceeding.[20]In JaganNathVs.Jaswant Singh[21] it is observed:

• “The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.”[22]

In election matters the standard of proof is high and burden is on the election petitioner. Mere preponderance of probabilities or presumptions cannot be the basis to challenge an election. The election proceedings are akin to criminal proceedings.[23]

It is held in Gajanan Krishnaji Barat Vs. Dattaji Raghobaji Meghe[24] that in an election petition, based on allegations of commission of corrupt practice, the onus lies heavily on the petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate.

11.Validity of Election: Jurisdiction with Courts; not with Registrar.

            Though Section 36(1) of the Tamil Nadu Societies Registration Act, 1975 empowers the Registrar, either of his own motion or on the Application of a majority of the members of the committee of management or on the Application, of not less than one third of the members of the Society to hold an enquiry into the Constitution, working and financial condition of a registered Society, it is held in S. Thamil Arasan President of Chennai Vyasarpadi Nadar Nagar Progressive Association Chennai Vs. R. Narayanan[25] that the Registrar is not competent to enquire into the validity of an election, while performing a mere ministerial function; the jurisdiction is vested with the Courts.

12.Courts Sparingly Exercise Jurisdiction

The decision taken by the concerned authority during the course of election is not open to judicial review except on the ground of mala fide or arbitrary exercise of power.[26]Courts will not interfere with discharging duties by the elected office bearers of an organization, without cogent and compelling grounds. A simple breach of any Rule will not give rise to a cause of action for any member unless there is manifest illegality, or act or omission that goes to the root of the matter.  In other words, the alleged violation should be so grave that it could not be condoned by the general body.[27]

13.Right To Vote or Stand as a Candidate, Not a Civil Right

Right to Challenge an Election Is Not a Common Law Right

It is observed in S Thamil ArasanVs. R Narayanan[28] that since there is no specific provision permitting the challenge of an election to the society, the only remedy for challenging such election is by means of a civil suit.

NP PonnuswamiVs. Returning Officer, Namakkal[29] it was observed:

• “The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.”

The rights arising out of elections including the right to contest or challenge an election are not common law rights but are creatures of the statutes which create, confer or limit those rights; and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the Courts have to function within the framework of that law and not travel beyond it.[30] It is a special right conferred under a self contained special law. Right to vote or stand as a candidate for election is not a civil right, but is a creature of a statute or a special law and must be subject to the limitations imposed by it. It will, therefore, be advantageous to look into the scheme of the Act.[31]

13.Locus Standi of a Member to Challenge Election

In TejBahadurvsShriNarendraModi[32] the Apex Court considered the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he had a right to question the election. After finding that the appellant was not a duly nominated candidate, it is held as under:

• “We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, V.R. Krishna Iyer J., speaking for this Court held that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, it should be nipped in the bud at the first hearing.”

The Apex Court held in Bar Council of Delhi Vs. Surjeet Singh[33]:

• A voter could challenge the election.
• Merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case.
• A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any latches and must be non-suited only on that account.

A member of a Society does not have the right to challenge Election unless his rights are personally affected by the impugned action.[34] He should have been a candidate or acquired the right to vote.

In Committee of Management, Sri Kachcha Baba inter College, Varanasi Vs. Regional Committee, PanchamMandal[35] it was held that a group of members of the General Body (and not by a rival committee of management) had no locus standi to challenge the result of the elections.[36]

There were divergent views, in UP, on the right of an individual member to file a writ petition. In certain cases[37] it was held that an individual member had no right to file the writ petition. The other set of decisions[38] observed that the writ petition could be maintained, subject to the existence of efficacious alternative remedy, when there was a breach of right of a person affecting his right to form an association, which was a fundamental right under Article 19(1)(c) of the Constitution, or there was a breach of the Statute. Both the divergent views had been considered by a Division Bench in Committee of Management, AryaKanyaPathshala Inter College, Bulandshahar v. State of U.P.[39] The Division Bench observed as under:

•  “There is no such proposition that an individual member cannot, in no circumstance, challenge the election of the Committee of Management….. It is clear that the question as to whether an individual member has locus to challenge the election of Committee of Management depends on facts of each case…..”[40]

14.Individual Can MaintainCause of the Collective Body 

Where the right of an individual is affected or infringed, and, he has no other effective remedy, and where there are no vitiating circumstances such as delay, latches, etc., the cause of the collective body will be maintainable at the instance of an individual.[41]

15. Individual Membership Rights and Corporate Membership Rights

The Kerala High Court in Joseph Vs. Jos[42] observed as under:

• “…  There are two kinds of rights for a member of the company, one the individual membership right, and the other the corporate membership right. So far as the corporate membership rights are concerned, a shareholder can assert those rights only in conformity with the decision of the majority of the shareholders. An individual membership right is a right to maintain himself in full membership with all the rights and privileges appertaining to that status. …”

16.Election Process

Elections in associations are conducted in accordance with their Rules. If it is warrented, the court may intervene. In Hardeo Singh Vs. Union of India[43] the High Court of Uttarakhand being found it necessary that there should be a duly elected Management Committee for a Gurudwara for its proper management and administration, inter alia, following directions were issued with respect to election:

• “The Election Officer for the purposes of the completion of the election process including
  • de-limitation/re-determination of wards,
  • preparation of electoral rolls,
  • verification of electors,
  • qualification of members,
  • election process,
  • publication of results,
  • first meeting of elected committee,
  • election of office bearers,
  • first meeting of the committee,
  • constitution of sub-committees etc.,
• may constitute a committee not exceeding five members, whom the Election Officer finds suitable. Such five persons should be respectable and educated persons with no criminal record and no history of association with election of Gurudwara Sri Nanakmatta Sahib. These persons should have no interest or association with any candidate or group. They will also give an undertaking to the Election Officer that they have no interest in the election and they will not participate in canvassing or election etc. in any manner. The Election Officer shall follow such procedure, which is reasonable and on the basis of the principles of natural justice and in accordance with the Sikh principles and values.”

ElectionNorms and Procedure

In Food Corporation of India Staff Union Vs. Food Corporation of India[44] the Supreme Court laid down‘norms and procedure’to be followed for assessing the representative character of trade unions. A detailed and exhaustive election procedure is laid down therein. It reads as under:

•        “(i) As agreed to by the parties the relative strength of all the eligible unions by way of secret ballot be determined under the overall supervision of the Chief Labour Commissioner (Central) (CLC).
•        (ii) The CLC will notify the Returning Officer who shall conduct the election with the assistance of the FCI. The Returning Officer shall be an officer of the Government of India, Ministry of Labour.
•        (iii) The CLC shall fix the month of election while the actual date/dates of election shall be fixed by the Returning Officer.
•        (iv) The Returning Officer shall require the FCI to furnish sufficient number of copies of the lists of all the employees/works (category III and IV) governed by the FCI (Staff) Regulations, 1971 borne on the rolls of the FCI as on the date indicated by the CLC. The list shall be prepared in the proforma prescribed by the CLC. The said list shall constitute the voters list.
•        (v) The FCI shall display the voters list on the notice boards and other conspicuous places and shall also supply copies thereof the each of the union for raising objections, if any. The unions will file the objections to the Returning officer, within the stipulated period and the decision of the Returning Officer shall be final.
•        (vi) The FCI shall make necessary arrangement to:
  •        (a) give wide publicity to the date/dates of election by informing the unions and by affixing notices on the notice board and also at other conspicuous places for the information of all the workers;
  •        (b) print requisite number of ballot papers in the proforma prescribed by the CLC incorporating therein the names of all the participating unions in an alphabetical order after ascertaining different symbols of respective unions ;
  •        (c) the ballot papers would be prepared in the proforma prescribed by the CLC in Hindi/English and the concerned regional language;
  •        (d) set up requisite number of polling stations and booths near the premises where the workers normally work; and
  •        (e) provide ballot boxes with requisite stationery, boards, sealing wax etc.
•        (vii) The Returning officer shall nominate Presiding Officer for each of the polling station/booth with requisite number of polling assistants to conduct the election in an impartial manner. The Presiding Officers and the polling assistants may be selected by the Returning Officer from amongst the officers of the FCI.
•        (viii) The election schedule indicating the dates for filing of nominations, scrutiny of nominations papers, withdrawal of nominations, polling, counting of votes and the declaration of results, shall be prepared and notified by the Returning Officer in consultation with the FCI. The election schedule shall be notified by the Returning Officer well in advance and at least one month’s time shall be allowed to the contesting unions for canvassing before the date of tiling the nominations.
•        (ix) To be eligible for participating in the election, the unions must have valid registration under the Trade Unions Act, 1926 for one year with an existing valid registration on the first day of filing of nomination.
•        (x) The Presiding Officer shall allow only one representative to be present at each polling station/booth as observer.
•        (xi) At the time of polling, the polling assistant will first score out the name of the employee/workman who comes for voting, from the master copy of the voters’ list and advise him thereafter to procure the secret ballot paper from the Presiding Officer.
•        (xii) The Presiding Officer will hand over the ballot paper to the workman/employee concerned after affixing his signatures thereon. The signatures of the workman/employee casting the vote shall also be obtained on the counterfoil of the ballot paper. He will ensure that the ballot paper is put inside the box in his presence after the voter is allowed to mark on the symbol of the candidate with the inked rubber stamp in camera. No employee/workman shall be allowed to cast his vote unless he produces his valid identity card before the Presiding Officer concerned In the event of non production of identity card due to any reason, the voter may bring in an authorisation letter from his controlling officer certifying that the voter is the bona fide employee of the FCI.
•        (xiii) After the dose of the polling, the Presiding Officer shall furnish detailed ballot paper account in the proforma prescribed by the CLC indicating total ballot papers received, ballot papers used, unused ballot papers available etc. to the Returning Officer.
•        (xiv) After the close of the polling, the ballot boxes will be opened and counted by the Returning Officer or his representative in the presence of the representative of each of the unions. All votes which are marked more than once, spoiled, cancelled or damaged etc. will not be taken into account as valid votes but a separate account will be kept thereof.
•        (xv) The contesting unions through their representatives present at the counting place may be allowed to file applications for re- counting of votes to the Returning Officer. The request would be considered by the Returning Officer and in a give case if he is satisfied that there is reason to do so he may permit recounting. However, no application for recounting shall be entertained after the results of the votes are declared.
•        (xvi) The result of voting shall the compiled on the basis of valid votes polled in favour of each union in the proforma prescribed by the CLC and signatures obtained thereon from the representatives of all the unions concerned as a proof of counting having been done in their presence.
•        (xvii) After declaring the results on the basis of the votes polled in favour of each union by the Returning Officer, he will send a report of his findings to the CLC.       (xviii) The union/unions obtaining the highest number of votes in the process of election shall be given recognition by the FCI for a period of five years from the date of the conferment of the recognition.
•        (xix) It would be open to the contesting unions to object to the result of the election or any illegality or material irregularity which might have been committed during the election. Before the Returning Officer such objection can only be raised after the election is over. The objection shall be heard by the CLC and dispose of within 30 days of the filing of the same. The decision of the CLC shall be final subject to challenge before a competent court, if permitted under law.”

17. Powers of a Returning Officer

In the absence of express or implied regulations to the contrary,[45] the returning officers, domestic tribunals, syndicate of a university, enquiry committees, etc. are also free to evolve and follow their own procedure as they are ‘masters of their own procedure’;[46] but, they must ensure natural justice in their proposed actions.[47] Lord Denning, Master of Rolls, in the Court of Appeal in England observed, in the matter of a non-statutory domestic tribunal, as under:[48]

• “Is a party who is charged before a domestic tribunal entitled as of right to be legally represented, much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal. They are masters of their own procedure: and, if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere….”[49]

It is held in Guru Nanak University Vs. Iqbal Kaur Sandhu[50] as under:

• “It is not the province and the function of this Court to lay down either the time or the mode and manner in which autonomous and high-powered bodies like the Syndicate of the appellant-University are entitled to conduct their business in the meetings. They are equally masters of their own procedure and unless there is an infraction of the clear statutory rules in carrying out their duties and in conforming to the procedure prescribed by law, this Court would be ill-advised to render any gratuitous advice to them in their autonomous field in dealing and disposing of their business.”

The election schedule (fixing the dates for filing of nominations, scrutiny of nominations papers, withdrawal of nominations, polling, counting of votes and the declaration of results etc.)is, usually, made and announced by the Returning Officer in consultation with the authority responsible to conduct the election.

A Returning Officer merely conducts the election and has no power to consider the question as to whether a member is eligible to vote or not.[51] He cannot also cancel the membership of a person. After the declaration of the result, the Returning Officer becomes functus officio and he has no power or jurisdiction to change the declaration or to make any other declaration or to make an order to recount or to reconsider the result of election. The returning officer who makes the scrutiny of nominations has the power to reject nomination on proper grounds and he can decide on the eligibility of a candidate.

18.Duties of Returning Officer

The Returning Officer has to be perform his duties with detachment and impartiality.[52] Our Apex Court, in Food Corporation of India Staff Union Vs. Food Corporation of India,[53]  propounded norms and procedures to be followed for assessing the representative character of the trade union.

19. Ordinarily, Courts will not Interfere with Election Process

In Supreme Court Bar Association Vs. BD Kaushik[54]  our Apex Court held:

• “Since 1952 this Court has authoritatively laid down that once election process has started the courts should not ordinarily interfere with the said process by way of granting injunction.”

In JaganNathVs.Jaswant Singh[55] it is observed:

•  “… It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.”

Remedies with respect to the disputes as to elections will have to be sought for after elections are over. This time-honoured principle is emphasised in the following decisions also.

• Shaji K. Joseph Vs. V. Viswanath[56]
• N.P. Ponnuswami Vs. Returning Officer[57]
• Nanhoo Mal and Others Vs. Hira Mal[58].
• Mohinder Singh Gill Vs. Chief Election Commr.[59]:
• Boddula Krishnaiah Vs. State Elec. Commissioner, A.P.[60]
• ShriSantSadguruJanardan Swami Vs. State of Maharashtra[61]
• AnugrahNarain Singh Vs. State of U.P.[62]
• Election Commissioner of India Vs. Ashok Kumar[63]
• Abdulla Khan Vs. State of Orissa[64].
• Abdul Latheef C.K. Vs. K.M. Haneefa[65]
• Medical Council of India Vs. Regar/Returning Officer, TN[66]
• Avtar Singh Vs. Delhi Sikh Gurudwara Mgmnt. Comtee,[67]
• C. Subrahmanyam Vs. K. Ramanjaneyullu[68]
• Ashok Kumar Jain Vs. NeetuKathoria[69]
• K.K. Shrivastava Vs. Bhupendra Kumar Jain[70]

It is observed in Shaji K. Joseph Vs. V. Viswanath[71] while considering election to Dental Council of India under Section 3 (a) of the Dentists Act, 1948:

• “So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent No.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to herein above clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court ‘s order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.”

In K.K. ShrivastavaVs.Bhupendra Kumar Jain[72] with respect to election to the Bar Council of Madhya Pradesh under the Advocates Act our Apex Court held:

• “Where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.”[73]

In Proper Cases Courts Order Election and Appoint Receivers

Though not specifically sought for in relief, in proper cases, Courts order election and appoint receivers.

The courts interfere and grant relief in a given situation[74]disregarding the technicalities. For example:

• (i)   where the issue was not properly expressed and it was of formal nature;[75]
• (ii) when a larger relief was prayed for and the claim for the same was not duly established but the evidence justified grant of smaller relief;[76]
• (iii) where the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage;[77] and
• (iv) to promote substantial justice; subject, of course to the absence of other disentitling factors or just circumstances where equity justifies bending the rules of procedure, where no specific provision or fairplay is violated – as procedure is the handmaid and not the mistress of the judicial process.[78]

Kerala High Court, in KP Muhammed Vs.  M Abdurahiman,[79]held that when there was no validly elected committee for the proper management of an association, the civil courts would have jurisdiction to order election of the committee even if it was not sought for by the parties.

20.Jurisdiction of Civil Courts is ‘Rather Limited’: Principles

See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs

21.Standard of Proof in Election Matters:

The election of a returned candidate will not be set aside unless there are cogent and convincing reasons.[80] In election matters the standard of proof is high and burden is on the election petitioner. The court proceedings on election disputes are akin to criminal proceedings.[81] It is held in Gajanan Krishnaji Barat Vs. Dattaji Raghobaji Meghe[82] that in an election petition, based on allegations of commission of corrupt practice, the standard of proof required is, generally speaking, that in a criminal trial.  The onus lies heavily on the petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate.

It is pointed out in Seth Gulabchand v. Seth Kudilal[83] that the rules applicable to circumstantial evidence in criminal cases would not apply to civil cases. The ordinary rules governing civil cases of balance of probabilities will continue to apply. Mere preponderance of probabilities or presumptions cannot be the basis to challenge an election.

22.Temporary Injunctions

Interference of courts after election-process commenced [84]and stopping an electionare very much against public policy.[85]  But, there is no absolute restriction upon court; it is only limited.[86]

Election Tribunals under the Representation of Peoples Act are not conferred with power to grant temporary injunctions.When granting injunction is subject to the declaration sought for, in election matters it will be proper not to grant temporary injunction.[87]The success of a winning candidate at an election cannot be lightly interfered with; more so when no fault of his.[88] If ultimately, the suit is dismissed, the court cannot compensate for granting a temporary injunction.[89]

23.Technicalities of Election Petitions

In UmeshChalliyill Vs. K.P. Rajendran[90] our Apex Court ruled that the election petitions should not be dismissed at the threshold on technical defects which were purely cosmetic and do not go to the root of the matter. It is observed: 

• “However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter  and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects.”[91]

24.Instances of Courts Interference before Completion of Election:

1. Election process was not in conformity with the relevant statutory provisions.[92]
2. Election Meeting not in conformity with Articles.[93]
3. Conduct of elections was not in accordance with the Bye laws of the Association.[94]
4. Voters’ list had been prepared on the basis of nonexistent rules.[95]
5. Violation of the essential provisions of the Election Rules and the Act and validity of the entire election is in challenge.[96]
6. Mala fide or arbitrary exercise of power.[97] Court interferes for fair and impartial election.[98]
7. Where validity of the entire election is in challenge beyond the election of a particular candidate, on the ground of the violation of the essential provisions of the Election Rules and the Act [99]
8. Where alternative remedy is no remedy in the eye of law.[100]

When the challenge of whole election is such that the alternative remedy is no remedy in the eye of law to cover the challenge; or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is available. In Bar Council of Delhi Vs. Surjeet Singh[101] the Court interfered since the Election Tribunal would have found itself incompetent to declare the proviso to R. 3 (3) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in R. 34 (8) was no remedy at all.The illegalities made the entire election void and the statutory rulesunder which the election was conducted was invalid.

25.Court Interfere for Fair and Impartial Election

In proper cases the courts appoint Returning Officers or administrators for societies. The Calcutta High Court in East Bengal Club Vs. Paltu Mukherjee[102] appointed an impartial special officer to hold the election under his supervision for ensuring fair and impartial election of the club. In Sarbjit Singh Vs. All India Fine Arts and Crafts Society[103] the court appointed Retired Chief Justice of the High Court of Himachal Pradesh to be the Administrator of the Society and gave him directions for convening GB and election.

26.No Question of Estoppel if Inherent Illegality

If a member participated in a meeting or election knowing the illegality of the same he would be deemed to have acquiesced or concurred in the election and would be estopped from challenging its validity.[104]

But, neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into service in case of an election which is liable to be set aside by a court. Therefore,evena defeated candidates can challenge an election on its inherent illegality.[105]

27.Nomination Paper Rejected: Writ Petition not Maintainable

In N.P. Ponnuswami Vs. Returning Officer[106] the nomination paper of the appellant for election to the Madras Legislative Assembly was rejected by the Returning Officer. The appellant challenged the rejection of the nomination paper by filing a writ petition in the High Court which was dismissed on the ground that it had no jurisdiction to interfere with the order of the Returning Officer on account of Article 329(b) of the Constitution, which says that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. In appeal, our Apex Court with a Bench of six learned Judges examined the question whether the writ petition would be maintainable at the initial stage against an order rejecting the nomination paper.

It was observed in this decision:

• “The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.”

28.Electoral Roll:

Illegality in Preparation: Remedy is Election Petition

Even as to alleged illegality or breach of rules while preparing the electoral roll, courts will not interfere in the election process, once it is started.[107]

With regard to elections in a society registered under the Maharashtra Co-operative Societies Act, 1960, the Supreme Court[108] observed in ShriSantSadguruJanardan Swami Vs. State of Maharashtra as under:

• “In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the election Tribunal.”

29.Electoral Roll: 

Illegality in Preparation: Courts Interfere

If the electoral roll itself has been challenged on the ground that the members enrolled are in violation of the provisions of the Scheme of Administration then in such cases the courts can interfere. A valid electoral role is the basic requirement of a fair election.[109]

In Chief Commissioner, Ajmer Vs. RadheyShyamDani,[110] the Constitution Bench of our Apex Court upheld the decision of the Chief Commissioner on the ground that the electoral roll prepared was invalid as it was prepared in accordance with some invalid rules.[111]

In RamgulamShriBaijnath Prasad Vs. Collector, Guna[112]it was observed that when election held on the basis of rolls which had not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.

In Pundlik Vs. State of Maharashtra[113] it is held by our Apex Court that where the voters’ list had been prepared on the basis of non-existent Rules, it would be illegal and the Court could interfere under Article 226 of the Constitution.

In Dev Prakash Balmukund Vs. Babu Ram Rewti Mal[114], it is held that if the very foundation of the election, namely, the electoral roll was illegal, no election on its basis could be proceed or be allowed to stand, but that did not mean that any kind of defect in the roll, however technical in its nature, would be suffice to reach such a conclusion.[115]

Courts Interferes if Result Materially Affected

Following Chief Commissioner, Ajmer Vs. Radhey Shyam Dani,[116]the Supreme court held in Bar Council of Delhi Vs. Surjeet Singh[117]  that the question as to whether a writ petition on the ground of illegal preparation of the electoral roll would be maintainable or not depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election. It is held:

• “10. The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a case.”

30.Electoral Rolls

Non-inclusion: Courts Will Not Interfere

In MARVS Sai Baba Vs. Commissioner and Registrar of Co-Op. Societies,[118] held as under:

• “7. . . It is pertinent to mention that the issue relating to the validity of membership of a society including that of wrong admission of a member or non-inclusion of a valid member in the rolls of the society is an issue to be decided before the election process begins and that can be a valid ground to invoke Section 32 (7) (a) of the Act to set right the things and then proceed for the elections and appoint a Person-in-charge to manage the affairs of the society in the interregnum. But, once a decision is taken to hold the elections and the election process commences by issue of notification, Section 32 (7) (a) of the Act has got no role and any dispute in connection with the election, be it of the nomination, of improper electoral roll and other aspects, have to be settled only by way of a judicial adjudication contemplated in Section 61 (3) of the Act. “

31.Electoral Roll:

Preparation on Invalid Provisions, Court Interferes

In Bar Council of Delhi Vs. Surjeet Singh[119] it was found by our Apex Court that the electoral roll prepared on the basis of invalid provisions resulted in vitiating the entire election, and that the writ petition for setting aside the election of the Bar Council of Delhi was maintainable. The Supreme Court while considering the validity of an electoral roll of Delhi Bar Council, omitting as many as 2000 Advocates on the basis of an invalid Rule framed by that Council, observed:

• “9. We, therefore, hold that the impugned proviso to R. 3 (j) to the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2000 Advocates from the said roll was not valid in law. We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names. For the said purpose R.4 occurring in Chapter I of the Bar Council of India Rules could come into play. But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated-a matter which cannot be put within the narrow limit of the said rule. 10. The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to R. 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a case.” [120]

32. Electoral Roll:

Court Interfere when Election on Nonexistent Rules

In N Thippanna Vs. State of Karnataka[121] Division Bench of the Karnataka High Court by its interim order directed to hold the election but withheld the results. Relying on the Supreme Court decision in Bar Council of Delhi Vs. Surjeeth Singh[122] the Karnataka High Court in its final Judgment held that the electoral rolls prepared by the University, omitting a very large number of registered graduates, was not in conformity with the Act, the statutes and the general principles for preparation of electoral rolls, and that it was void in law.  A valid electoral role is the basic requirement of a fair election.[123]

Though it is observed by our Apex Court in ShriSantSadguruJanardan Swami Vs. State of Maharashtra that when the process of election has been commenced it would be impermissible for the court to go into the questions as to breach of the Rule in the preparation of the voters’ list, it observed that where the voters’ list had been prepared on the basis of nonexistent rules, it would be illegal and the Court could interfere under Article 226 of the Constitution.

In Ahmednagar Zilla SDV and P Sangh Limited Vs. State of Maharashtra[124] though the appeal was dismissed following the principles of law laid down in Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra,[125]the Court directed the District Collector, Ahmednagar, to conduct fresh election of the Board of Directors to the appellant Society, forthwith.

33.Acceptance of List of Governing Body District Registrar – Effect

If a dispute arises as to whom among the two sets were the lawful members of the Governing Committee, the Registrar has the power to decide upon such a dispute under the Societies Registration Act as an incidental or consequential power in itself.The Registrar has to prima facie satisfy from the materials and evidences. There may not be an elaborate enquiry. However, such an enquiry made by the Registrar and the decision taken from it does not become final and the aggrieved party can take up the matter before a competent court for a decision as to who are the members of the governing body.[126]

34.Section 25 of So. Regn. Act as Amended by State of U.P[127]

Section 25 of the Societies Registration Act as amended by State of U.P. endows the ‘prescribed authority’ with the right to hear and decide in a summary manner disputes in respect of the election or continuance in office of office-bearers of societies.

Section 25 of the Societies Registration  Act as amended by State of U.P. reads as under:

• “25(1) The prescribed authority may, on a reference made to it by the registrar or by a least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office -bearer of such society, and may pass such orders in respect thereof as it deems fit:
•       Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied –
• (a) that any corrupt practice has been committed by such office-bearer; or               
• (b) that the nomination of an candidate has been improperly rejected; or
• (c) that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non -compliance with the provisions of any rules of the society.
• Explanation I. – …………….. ………… …
• Explanation II. – ………………… ……..
• Explanation III. –  ……………. ………..

But, when disputed questions of fact are involved, summary proceedings under Section 25 of the Act, 1860 will not be a bar for seeking remedy before the Civil Court as the summary proceedings under Section 25 is not an efficacious remedy.[128]

35.Non-convening of the Meetings: Acquiescence and Estoppel

Non-convening of Annual General Meetings is a serious allegation against the office-bearers of a Society.  But in proper cases courts can invoke doctrine of acquiescence and estoppel.

In TJ Thomas Vs. CS Joseph[129] reliefs were claimed under the provisions of the Companies Act, 1956 read with 3 and 4 of the Kerala Non-Trading Companies Act, 1961 alleging, inter alia, that the respondents were not convening the Annual General Meetings regularly. The prayers were, among other grounds, rejected  because it had come out in evidence that the non-convening of the meetings was due to the inaction on the part of petitioners; that the petitioners, if they were really interested in the affairs of the Sangam, should have taken appropriate steps at the appropriate time and seen that the Annual General Meetings were convened without fail; and that the conduct of the petitioners in this regard would show that they had without demur, acquiesced in the various activities of the respondents.

36.In Proper Cases Courts Order Election and Appoint Receivers

In K.P. MuhammedVs. M. Abdurahiman[130] both sides did not want an election to be conducted; and both were aiming at the administration or control of the Society, and for that purpose they were not so eager or anxious to have an election conducted in the manner suggested by the Court. The Kerala High Court, in order to resolve stalemate, orderedelection and appointed Receivers to manage its affairs.

37.If Violation of Bye laws Court Sets Right the Illegalities

In V. ArulkumarVs. Tamil Nadu Government Nurses Association[131] it is held that the court has to necessarily see as to whether the conduct of elections was in accordance with the Bye laws of the Association. If the same was in total violation of the Bye laws of the Association the court was certainly empowered to set right the illegalities and put the election process in motion to be performed in accordance with the Bye laws. Therefore it was held that the suit was maintainable.

38.Effect of Failure to File Documents u/s 4& Court Interference

Non-renewal of the registration of a society may be a bar to avail the benefits offered to registered societies, but the same by itself will not lead the inference that the society is not in existence.[132] 

It is held in Nand Deo Pandey Vs. Committees of Management[133] that properly constituted committee of management was required to continue the proceedings of inquiry against the Principal of a Vidyalaya. The Managing Committee had ceased to be valid due to non-renewal of the registration of the society and non-holding of periodical elections under the provisions of the Societies’  Registration (U.P. Amendment) Act, 1960.

But in Nelson Vs. Kallayam Pastorate[134] it is held that the courts cannot set aside elections on the sole ground of non compliance of certain statutory provisions by it, and that in the event of becoming a society defunct, or failure to file documents under Sec. 4 of the So. Regn. Act, there is no bar for its members to revive its activities and to conduct the election of the office bearers.

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[1]      See: Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982

[2]      Ram Pal Singh Vs. State of U P: LAWS(ALL)-2015-5-99

[3] AIR 2006 SC 980

[4] AIR1993 SC 412

[5]   AIR 1999 Bom 335

[6]      Sarbjit Singh Vs. All India Fine Arts & Crafts Society: ILR 1989-2 Del 585.

[7]    See Contract Act, Sec. 23.

[8]      Board of Trustees, Ayurvedic & Unani Tibia College Vs.The State: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commissioner of I T: AIR 2004 SC 4716;Hyderabad Karnataka Edn. Society Vs. Registrar of Societies: AIR 2000 SC 301;Co- op. Central Bank Vs. Addl. Industrial Tribunal, AP: AIR 1969  SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971  SC 422;Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[9]      Daman Singh Vs. State of Punjab: AIR 1985  SC 973; DamyantiNarangaVs. Union of India: AIR 1971 SC 966.

[10]    Syed MunirHoda Vs. Bader Sayeed: TLMAD-2012-0-2262; Supreme Court Bar Association Vs. BD Kaushik: : (2011) 13 SCC 774; State of UP Vs. COD Chheoki Employees’ Coop. Society Ltd : AIR 1997  SC  1413.

[11]    Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005  SC 2306

[12]    AIR 1997  SC  1413: Quoted in Zoroastrian Co-op. H. Society Ltd. Vs. District Registrar: AIR 2005  SC  2306; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774; Chandigarh Housing Board Vs. Devinder Singh: AIR 2007 SC 1723.

[13]    See: Sec. 9-14, 17 and 20

[14]    JyotiBasu Vs. Debi Ghosal AIR 1982 SC 983

[15]    SatyaNarainTripathiVs. State of UP: 2008 – 2 ADJ 222; 2008-71 All LR 698.

[16]    NagappaChettiar Vs. Madras Race Club: AIR 1951 Mad 831;         C L Joseph Vs. Jos: AIR 1965 Ker 68;         Star Tiles Works Vs. N. Govindan: AIR 1959 Ker  254

[17]    A. S. Krishnan Vs. M. Sundarum: AIR 1941 Bom 312;         SatyavartSidhantalankar Vs. AryaSamaj, Bombay, AIR 1946 Bom 516;         Nagappa Vs. Madras Race Club, AIR 1951 Mad 831;        ShridharMisraVs.Jihandra, AIR 1959 All 598. 

[18]    ShriSarbjit Singh Vs All India Fine Arts and Crafts Society : ILR (1989) 2 Delhi 585.

[19]    AIR1988 Mad 27

[20]    P NallaThampyThera Vs. B L Shanker: AIR1984 SC 135

[21]    (1954) SCR 892

[22]    Referred to in Ram Sukh Vs. Dinesh Aggerwal: AIR 2010 SC 1227; Ram PhalKundu Vs. Kamal Sharma : AIR 2004 SC 1657; IndrajitBarua Vs. Election Commission Of India: AIR 1986 SC 103;  P NallaThampyThera Vs. BL Shanker AIR 1984 SC 135; Samant N Balkrishna Vs. George Fernandez ; AIR 1969 SC 1201; Kumaranand Vs. Brij Mohan Lal; AIR1965 SC 628; Mahila Krishna Kumari Vs. MahilaSakunBhatnagar: AIR 1972 MP 155; Jagannath Dalai Vs. Rama Chandra Nahak: AIR 1959 Ori 26.

[23]    Md. MajidHussain Vs. MdAqueel, AIR 2015 AP 21, that See also: TanajiRamchandraNimhan Vs. Swati VinayakNimhan: AIR  2006 SC 1218.

[24]    1995-5 SCC 347

[25]   2005 (1) CTC 399 : 2005 (2) MLJ 102. Referred to in TheniMelapettai Hindu NadarkalUravinmuraiVs. The District Registrar: 2007 6 MLJ 1528.

[26]    Manish Kansal Vs. State of U P: LAWS(ALL)-2015-5-194

[27]    A. S. Krishnan Vs. M. Sundaram: A. I. R. 1941 Bom. 312,         See also: ShridharMisra Vs. Jaihandra, AIR 1959 All 598;        SatyavartSidhantalankar Vs. AryaSamaj, Bombay, AIR 1946 Bom 516 ;        NagappaVs. Madras Race Club, AIR 1951 Mad 831.

[28]    2005-1 CTC 399, (2005) 2 Mad LJ 102.        See also: V. ArulkumarAndOrs.  Vs. Tamil Nadu Government Nurses Association (Government Recognised): 2015-5 CTC 17: (2015) 5 Mad LJ 673.

[29]    (1952) SCR 218; AIR 1952 SC 64.

[30]    CharanLalSahu v. GianiZail Singh: AIR 1984 SC 309; Referred to in Mithilesh Kumar Sinha Kaka Joginder Singh Vs. Returning Officer for Presidential Election: DrShankerDayal Sharma: AIR1993 SC 20; P NallaThampyThera Vs. B L Shanker: AIR  1984 SC 135. Also See: SatyaNarain Vs. Dhuja Ram: AIR 1974 SC 1185; U S Sasidharan Vs. K Karunakaran: AIR1990 SC 924; JyotiBasu Vs. Debi Ghosal: AIR 1982 SC 983: Sukumarakurup Vs. District Judge: AIR 1998 Ker 332; Ram Shankar Chaudhary Vs. Rama Shankar Singh: 1978 JLJ  401.

[31]    Sukumarakurup Vs. District Judge: AIR  1998 Ker 332

[32]AIR 2021 SC 217

[33]AIR 1980 SC 1612

[34]    Ram Pal Singh Vs. State of U P: LAWS (ALL)-2015-5-99.        Referred to: Ram PyareLal Vs. State of U.P. 2015 3 ADJ 577;        Indian Sugar Mills Association Vs. Secretary to Government, UP: AIR 1951 All 1;        Dr. PP Rastogi Vs. Meerut University, 1997 1 UPLBEC 415;        Vimla Devi Vs. Deputy Director of Education, 1997-3 ESC 1807;  2010 (1) ADJ 262

[35]   2007-7 ADJ 414; 2007-3 All LR 14

[36]    Referred to in SatyaNarainTripathiVs. State of U P: 2008 – 2 ADJ 222, 2008-71 ALLLR 698.

[37]Dr. P.P. Rastogi v. Meerut University, Meerut, 1997-1 UPLBEC 415; Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra, 1997-3 ESC 1807; BhagwanKaushik v. State of U.P., 2006-2 UPLBEC 1372; Amanullah Khan v. State of U.P. and others, 2009-75 All LR 29

[38]Kamla Kant Agrawal v. State of U.P., 2008-7 ADJ 601; Committee of Management, Janta Inter College, Sultanpur, District Haridwar v. Joint Director of Education, I Region, Meerut, 1999-1 UPLBEC 170;Ratan Kumar Solanki v. State of U.P., 2010-1 ADJ 262 (DB).

[39]2011-2 ADJ 65

[40] See: Laxman Singh Vs. State of UP, ADJ 2014 9 242, AWC 2014 5 4382, LBESR 2014 3 415

[41]    Committee of Managt.AryaKanyaPathshala Inter College Vs. State of UP: 2011- 2 ADJ 65; Gopal Y Unkal Vs. Karnataka VidyaVardhakaSangha, Dharwad, Dist: KarCCR 2018 2 1880

[42]    AIR 1965 Ker 68.         Quoted in Rajeev Saumitra Vs. Neetu Singh: 2016-198 Comp Cases 359.

[43]    2016 3 UAD 656

[44]AIR 1995 SC 1344

[45]    See: ShyamNarainShukla, Committee of Management Vs. State of UP: 1995-25 All LR 100; 1995-1 LBESR 174.

[46]    Kurukshetra University Vs. Vinod Kumar: AIR 1977 Pj&Hr 21;        Sarup Singh Vs. State of Punjab: 1990-1 LLJ 285.        See with respect to statutory tribunal: AnnamalaiVs. R Doraiswamy: 1982 ACJ 371.

[47]    Ramesh Kapur Vs. Punjab University:  AIR 1965 Punj 120; Rakesh Kumar Vs. J & K State Board of School Education: AIR 1992 J&K 22.

[48]    Enderby Town Football Club Ltd. Vs. Football Association Ltd. (1971 Chancery Div. 591)

[49]    Quoted in J K Aggarwal Vs. Haryana Seeds Development Corporation:  AIR 1991 SC 1221.

[50]    AIR  1976 P & H 69.

[51]    K V Vijayakumar Vs. Joint Registrar of Co Operative Societies: AIR  1996 Ker 150

[52]    Pritam Singh Vs. S. Ranjit Singh: AIR 1965 Punjab 39.

[53]    AIR 1995 SC 1344.

[54]    (2011) 13 SCC 774

[55]    (1954) SCR 892. Also See: JayantaSamal Vs. KulamaniBehera: 2004 13 SCC 552

[56]    AIR  2016 SC 1094.

[57]    AIR 1952 SC 64

[58]    (1976) 3 SCC 211

[59]    AIR 1978 SC 851.

[60]    AIR 1996 SC 1595

[61]    AIR 2001 SC 3982;        Followed in AhmednagarZilla SDV P Sangh Vs. State of Maharashtra, (2004) 1 SCC 133

[62]    (1996) 6 SCC 303

[63]    AIR 2000 SC 2977

[64]    2008 (Supp.) O.L.R. 251

[65]    2015-3 Ker LT 299.

[66]    AIR 2014 Mad 34

[67]    (2006) 8 SCC 487.

[68]    (1998) 8 SCC 703.

[69]    (2004) 12 SCC 73; Also see: Harcharan Singh Vs. Mohinder Singh: AIR 1968  SC 1500; Mohinder Singh Gill Vs. The Chief Election Commissioner: AIR 1978  SC 851; JyotiBasu Vs. Debi Ghosal: AIR  1982  SC  983; HarikrishnaLal Vs. BauLalMarandi: 2003-8 SCC 613; Shyamdeo Pd. Singh Vs. Naval Kishore Yadav: 2000-8 SCC 46; Election Commission of India Vs. Ashok Kumar : AIR 2000 SC 2977

[70]    AIR 1977 SC 1703.

[71]    AIR  2016 SC 1094: Referred: Ponnuswami Vs. Returning Officer: AIR 1952 SC 64;  ShriSantSadguruJanardan Swami Vs. State of Maharashtra: 2001 (8) SCC 509 Nanhoo Mal and others Vs. Hira Mal: 1976 (3) SCC 211.

[72]    AIR 1977 SC 1703.

[73]    See also: Abdul Latheef C.K. Vs. K.M. Haneefa:  2015-3 Ker LT 299.

[74]    UP State Brassware Corporation Ltd. Vs. UdaiNarainPandey: AIR 2006 SC 586

[75]    Manugobinda Vs. BrajabanduMisra – AIR 1986 Orissa 281

[76]    Lavu Sri Krishna Rao Vs. Dr. MoturiNagendraRao: AIR 2007 A P 25

[77]    Rameshwar Vs. Jot Ram:  AIR 1976 SC 49

[78]    PasupuletiVenkateswarlu Vs. The Motor & General Traders:  AIR 1975 SC 1409.

[79]LAWS(KER) 2013 3 137

[80]Kalyan Kumar Gogoi Vs. AshutoshAgnihotri:AIR 2011 SC 760

[81]    MdMajidHussain Vs. MdAqueel, AIR 2015 AP 21, that See also: TanajiRamchandraNimhan Vs. Swati VinayakNimhan: AIR  2006 SC 1218.

[82]1995-5 SCC 347

[83][1966]3 SCR 623

Referred to in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K S Gandhi: 1991 AIR-SCW 879.

[84]    Shaji K. Joseph Vs. V. Viswanath AIR  2016 SC 1094

[85]    In Re: T BalajiRao Naidu Garu Vs. State: AIR 1933 Mad 103 (PC).

[86]    Daver Vs. Lodge Victoria No. 363 SC Belgaum, AIR 1963 SC 1144;        ShridharMisraVs.JaichandraVidyalankar:   AIR 1959 All 598.

[87]    RaghubarDayalMisra Vs. Shankar Lal: AIR  1934 All 876.

[88]    Kalyan Kumar Gogoi Vs. AshutoshAgnihotri:AIR 2011 SC 760. Referred to in:Ashok Vs. RajendraBhausahebMulak: 2012-12 SCC 27;  Ravinder Kumar Rawal Vs. V.K. Sood: ILR 2011-2  P&H 704.See also: JaganNath Vs. Jaswant Singh (1954) SCR 892;JayantaSamal Vs. KulamaniBehera: 2004-13 SCC 552

[89]    Saheed Sporting Club Vs. Kalyan Ray Choudhury : 2008 CLT Supp 338. AIR 1963 All 518 referred to.

[90]    (2008) 11 SCC 740.

[91]Quoted in G.M. Siddeshwar Vs. Prasanna Kumar: AIR  2013 SC 1549.

[92]    ChandrakantMahadevPatole Vs. State of Maharashtra: 2010 All MR 457

[93]    Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585:

[94]    V. Arulkumar Vs. TN Government Nurses Association: 2015-5 CTC 17

[95]    Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra AIR 2001 SC 3982;  Ahmednagar Zilla SDV.  Vs. State of Maharashtra, 2004-1 SCC 133; Pundlik Vs. State of Maharashtra: AIR 2005 SC 3746;  Dev Prakash Balmukund Vs .Babu Ram Rewti Mal: AIR 1961 Punj 429 referred to in Bar Council Of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612. Electoral Roll is a fundamental factor: DevassyVs. Asst. Regtr.: ILR 1976 (1) Ker. 95. See also: Ajmer Vs. RadheyShyamDani: AIR 1957 SC 304; Gopalan Vs. Joint Registrar of Cooperative Societies 1985 Ker LT 446; Joseph Vs. Kothamangalam Co-op. M. Society: 1994 (1) Ker LT 828. See Contra view Supreme Court Bar Association Vs. B.D. Kaushik: (2011) 13 SCC 774;  Shri Sant SadguruJanardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982; Radheshyam Vs. Chairman, Sahakari Samiti, : AIR 1976 MP 156; Ram Swaroop, Dohare Vs. AyuktaSahkarita: AIR 1996 MP 187.[96]    Umakant Singh Vs. Bindra Chaudhary AIR 1965 Pat 459;        Referred to in Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612

[97]    Manish Kansal Vs. State of U P: LAWS(ALL)-2015-5-194

[98]    East Bengal Club Vs. Paltu Mukherjee : 2011-1 Cal HN 184

[99]    Umakant Singh Vs. BindraChaudhary AIR 1965 Pat 459;        Referred to in Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612.        Also: ParmeshwarMahaseth Vs. State of Bihar, AIR 1958 Pat 149:        Referred to in Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612.

[100]  Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612.

[101]  Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612

[102]  2011-1 Cal HN 184

[103]  ILR 1989-2 Del 585

[104] MaksudanRaut Vs. State of Bihar: AIR 1983 Pat 186. Followed in SatyaNarain Singh Vs. State of Bihar: AIR 1984 Pat 26. See also: R. NanjundegowdaVs Revenue Secretary-Ii, Bangalore: AIR 2006-6 (Kar)(R) 523; NandParkashVohra Vs. State of H P: AIR 2000 HP 65.

[105]  Bar Council of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612; KangluBaulaKotwal Vs. Chief Executive Officer, JanpadSabha, Durg: AIR 1955 Nag 49; RamgulamShriBaijnath Prasad Vs. Collector, Guna, AIR 1975 MP 145 (Oza J.)  referred to.

[106]  AIR 1952 SC 64

[107]  See: Supreme Court Bar Association Vs. B.D. Kaushik: (2011) 13 SCC 774;   ShriSantSadguruJanardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982; Radheshyam Vs. Chairman, SahakariSamiti, : AIR 1976 MP 156; 2008 (4) MPLJ 353 (Ram Singh Vs. State of MP and others); Ram Swaroop, Dohare Vs. AyuktaSahkarita: AIR 1996 MP 187

[108]  ShriSantSadguruJanardan Swami Vs. State of Maharashtra: AIR 2001 SC 3982

[109]  Laxman Singh Vs. State of U P: 2014 – 9 ADJ 242

[110]  AIR 1957 SC 304

[111]  Referred to in Bar Council Of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612

[112]AIR 1975 MP145 (Oza J.)

[113] AIR 2005 SC 3746

[114]  AIR 1961 Punj 429; referred to in Bar Council Of Delhi Vs. Surjeet Singh: AIR 1980 SC 1612. Electoral Roll is a fundamental factor: DevassyVs. Asst. Registrar of Cooperative Societies: ILR 1976 (1) Ker. 95.

[115]  See also: Gopalan Vs. Joint Registrar of Cooperative Societies 1985 Ker LT 446; Joseph Vs. Kothamangalam Co-op. M. Society Ltd: 1994 (1) Ker LT 828

[116]  AIR 1957 SC 304

[117]  AIR 1980 SC 1612. Referred: Pundlik Vs. State of Maharashtra: AIR 1975 MP145; Bhupendra Kumar Jain Vs. Y. S. Dharmadhikari, AIR 1976 MP 110.

[118]  1999(2) ALD 319 (DB)

[119]  AIR 1980 SC 1612

[120]  Relied on in: Sanjeev Kumar and Vs. Registrar of Co-Operative Societies LAWS(DLH)-2015-8-175.

[121] 1982-2 Kant LJ 313

[122]AIR 1980 SC 1612

[123]DevassyVs. Asst. Registrar of Cooperative Societies: ILR 1976 (1) Ker. 95; Gopalan Vs. Joint Registrar of Cooperative Societies 1985 Ker LT 446; Joseph Vs. Kothamangalam Co-op. M. Society Ltd: 1994 (1) Ker LT 828).

[124]  AIR 2004 SC 1329; followed in  Pundlik Vs. State of Maharashtra: AIR 2005 SC 3746

[125]  AIR 2001 SC 3982

[126]  AP AboobakerMusaliarVs. Dist. Registrar (G), Kozhikode: (2004) 11 SCC 247.See also:  CMZ Musliar Vs. Aboobacker: ILR 1998-2 Ker 76. GyanBhartiShikshaSadan Vs. State of Uttar Pradesh, 2014 5 ADJ 263

[127]  See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.

[128]  NagriPrachariniSabha Vs. V^th Additional District and Sessions Judge, Varanasi: 1991 Supp (2) SCC 36

[129]  ILR1988-1 Ker 429

[130]  LAWS (KER)-2013-3-137

[131]  2015-5 CTC 17

[132]  Committee of Management  Vs. Commissioner, Kanpur Region: 2008 -1 AWC 695; 2008 -1 ADJ 706; 2008-70 All LR 368.

[133]  AIR 1991 SC 413

[134]  AIR 2007 SC 1337.

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Relevant provisions of Kerala Land Reforms Act (on Purchase Certificate,  Plantation-Exemption & Ceiling Area) in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Civil Rights and Jurisdiction of Civil Courts
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• Res Judicata and Constructive Res Judicata
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society/Trust

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Public & Private Trusts in India
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• What is Trust in Indian Law?
• Vesting of Property in Societies and Clubs
• Vesting of Property in Trusts
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership

Saji Koduvath, Advocate

Synopsis

• 1.      Definition of ‘Member’ & Right to Vote
• 2.      State-Acts Empower Registrar to Call Elections
• 3.      Membership in a Society, not a Fundamental Right
• 4.      ‘Subscription in Arrears’: Afford Opportunity of Payment
• 5.      Individual Membership Rights
• 6.      Individual Can Maintain Cause of the Collective Body 
• 7.      Individual and Corporate Membership Rights
• 8.      When Minority can File Suits Without Sanction of Majority
• 9. Exceptions to the rule in Foss Vs. Harbottle
• 9.      No Personal Liability on Members & Gov. Body
• 10.    Co-op: Society has Corporate Personality & Its Liability
• 11.    Elected Representatives of a Church can Protect Property
• 12.    No Taxing When Members Avail the Facilities
• 13.    Admission of New Members
• 14.    Instances When Court Interferes

Provisions of the Societies Registration Act, 1860:

• 15. Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
• Disqualified members: But in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months

1. Definition of ‘Member’ & Right to Vote

Norms & Formation of Governing Body is Left to Bye Laws.

The definition of ‘Member’ in the Societies Registration Act, 1860 (in Sec.15) is not exhaustive, as it is ‘for the purposes of this Act’ alone. Therefore it is legitimate to say that the disqualifications specified in the second limb of Section 15 (restriction to vote; and not to count as a member, because of subscription-arrears) is confined[1] to the activities enjoined to the ‘members’ in the So. Registration Act: ie. to take part in the meeting to make bye laws (S. 9), amend the ‘purposes’ (S. 12), take decision to ‘amalgamate’ with another society (S.12), dissolution (S. 13), etc.

So. Regn. Act does not specifically deal with or direct ‘election’ of the governing body.[2] The mode and modalities of formation of the governing body is resolutely left, under Sec.16, to the ‘rules and regulations of the society’.

Sec.16 reads:

• Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

It cannot be understated as an omission in the Act. Pointing out the fundamental right guaranteed (Article 19(1)(c) of the Constitution of India) to form associations, and that the bye laws bind the members as a contract, even if it can be argued that the founders of a society are free to make bye laws which provide for permanent governing body, without an election, it appears that such a society cannot be recognised under the Societies Registration Act in our country which values democratic principles as paramount. Bye laws of a society or a club is a contract amongst its members; and therefore, it must be reasonable.[3]

It is also possible to demonstrate that the right to vote can be conferred upon the life-members or honorary-members even in a registered society (who have not signed the roll/list of members or are in arrears). In Periyar Self-Respect Propaganda Institution Vs. State of Tamil Nadu[4] it is observed: 

• “By putting an end to the life membership or life offices, there is no putting an end to the right to form an association as such. The holding of an office for a particular tenure or for that matter for life is a matter of internal arrangement amongst members constituting the Institution or the Charitable Society and certainly it cannot assume the colour of a fundamental right. Neither the Institution nor the Charitable Society, or the present incumbents of the life offices could claim that they could form associations only with the life offices engrafted in the rules, or if they had already formed, they must be allowed to continue to have that set up and any disturbance thereof would amount to violation of the right to form an association guaranteed under Art. 19(1)(c). If at all, such a right could be characterized as a peripheral or concomitant right which may facilitate the fulfillment of the objectives of the founders of the Institution and the Charitable Society. But, there is no constitutional guarantee that every association formed shall effectively achieve its objectives without interference by law. Neither the members nor the association of members could claim that they have a fundamental right to have office for life.”

2. State-Acts Empower Registrar to Call Meeting for Elections

Societies Registration Act, 1960 as amended by the State of UP empowers the Registrar to call a meeting of the General Body of a society for electing its office bearers. In such cases, it is legitimate to say that the Registrar has to resort the definition in the Act to determine the members entitled to attend the meeting and to vote.

3. Membership in a Society, not a Fundamental Right

It is settled law that no citizen has a fundamental right under Article 19(1)(c) of the Constitution of India to become a member of a society, though it is a Co-operative Society established under a statute.[5]

The Hindi Sahitya Sammelan Vs. Jagdish Swamp[6] is the authority for the proposition that the right to form an association enjoins with it a right to continue to be associated with it as well as to ensure that only those persons are admitted to the association whom they voluntarily admitted.

In Satya Narain Tripathi Vs. State of UP[7] it is observed as under

• “But a right to form an association on the one hand and the right to be elected to an office of such association or to participate in the elections on the other hand have been held to be distinct rights and the latter can be claimed only in accordance with the provisions of the bye-laws of the association or under a statute while the former can be claimed also as a fundamental right.”

Vide 97^th Amendment to the Constitution of India[8] the right to form Co-operative Societies has been made a fundamental right. But the same would not alter the principle of membership in such societies; because, the right to form a Co-operative Society is different from the right to become a member therein which continues to be governed by the provisions of the Act, the Rules and the Bye laws.[9]

4. ‘Subscription in Arrears’

Affording Opportunity of Making Payment

Non-payment of subscription will not amount to relinquishment of membership, unless the person had been afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences.  The Societies Registration Act does not provide for automatic expulsion or removal/termination of membership for non-payment of subscription fees.

While considering Section 2 (b) of the Karnataka Societies Registration Act (similar provision to Sec. 15 of the Societies Registration Act), the High Court of Karnataka (R.P. Sethi, G. Patri Basavana Goud JJ.), in Lingappa Police Patil Vs. Registrar of Societies[10] after referring to dictionary meaning of ‘resignation’ and various Supreme Court decisions[11] it is held as under:

• “In view of what we have noted hereinabove, it cannot be said that mere non-payment of the subscription would amount to resignation within the meaning of Section 2 (b) of the Act. Non-payment of subscription would also not amount to relinquishment of membership, unless a person is afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences. The society may be justified and the respondents may prescribe any such rule which provides for affording an opportunity to the defaulting member to make the payment of the arrears of subscription and upon failure, without valid reasons, declare the defaulter to cease to be the member for the purposes of the Act and the Rules. A reference to the proviso to Sub-section (2) of Section 6 of the Act clearly indicates that save as otherwise provided by the Act, no rule or regulation of the society can exclude any member from being entitled to vote.”

In Lingappa Police Patil Vs. Registrar of Societies[12] it is also held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause[13] for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws. The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act.

5. Individual Membership Rights

(See Chapter: Individual Membership Rights)

With respect to the individual membership rights of a member of a society registered under the Societies Registration Act, the general principles governing the rights of an individual share holder or a member of a company would apply.[14]

Following are recognised by Courts as ‘individual membership rights’ in a company[15]. 

• (i)  Right to vote,
• (ii) right to stand as a candidate as a director and 
• (iii) set-right illegal acts.

These rights can be asserted by a member in his personal capacity without the sanction of the majority or without impleading the company as a co-plaintiff or defendant.

In the often quoted decision, Nagappa Chettiar Vs. Madras Race Club[16] it is observed:

• “A share-holder is entitled to institute a suit to enforce his individual rights against the Company such as his right to vote or his right to stand as a director of a company at an election ……….. It is open to a majority always to set right a thing which was done by the majority either illegally or irregularly if thing complained of was one which the majority of the company were entitled to do legally and was within the powers of the company, by calling a fresh meeting.  That is the reason why in such cases the court refuses to interfere at the instance of a share-holder even in a representative action brought by him. If the majority, however, acts in an oppressive manner, it is not as if the minority are without a remedy. …… From this it follows that a share-holder or share-holders are entitled to bring an action:
  • (1) In respect of matters which are ultra vires the company and which the majority of share-holders were incapable of sanctioning (See Burland Vs. Earl, 1902 AC 83);
  • (2) Where the act complained of constitutes a fraud on the minority and
  • (3) Where the action of the majority is illegal“.

6. Individual Can Maintain Cause of the Collective Body 

Where the right of an individual is affected or infringed, and, he has no other effective remedy, and where there are no vitiating circumstances such as delay, latches, etc., the cause of the collective body will be maintainable at the instance of an individual.[17] 

7. Individual Membership Rights and Corporate Membership Rights

The Kerala High Court in Joseph Vs. Jos[18] observed as under:

• “…  There are two kinds of rights for a member of the company, one the individual membership right, and the other the corporate membership right. So far as the corporate membership rights are concerned, a shareholder can assert those rights only in conformity with the decision of the majority of the shareholders. An individual membership right is a right to maintain himself in full membership with all the rights and privileges appertaining to that status. …”

8. When Minority can File Suits Without Sanction of Majority

Exceptions to the rule in Foss Vs. Harbottle

See Chapter: How to Sue Societies & Clubs

9. Liability of So: No Personal Liability on Members & Gov. Body

See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.

10. Co-op: Society has Corporate Personality; Liability It’s Own

Merely because of a person having been its president for some time will not be liable for payment of the dues of a Co-operative Society; because, a Co-operative Society registered under the Co-operative Societies Act is a legal entity invested with a corporate personality which makes it distinct and different from the various members constituting it. The liability of the society is its own and not that of its members or office bearers, and has to be met by the society itself.[19] It is held in State of Punjab Vs. Amolak Ram Kapoor[20] as under:

• “Since the Board was a society registered under the Societies Registration Act and as per rules and regulations it could acquire and sell property, the recovery of arrears of sales tax imposed on the Board could only be recovered from the property of the Board and not from the members of the Board.”

Ninety Seventh Amendment of our Constitution provided constitutional status to the Co-operative Societies and it has brought out radical changes in the concept of Co-operative Societies. Democratic functioning and autonomy have now become the core constitutional values of a Co-operative Society.

11. Elected Representatives of a Church can Protect Property

In Latin Archdiocese of Trivandrum Vs. Seline Fernandez[21] the question came whether the plaintiffs were competent to represent the parish and claim rights against the third party defendants. The third parties (though were also parishioners of the very same Church), by the nature of the claim set up by them, as against the Church, with reference to the property, stood as rival claimants with the Church.

The court found that the suit having been initiated and prosecuted with the ultimate aim of protecting the Church property (as per the Canon Law Church property vests in the hands of the Bishop or the Vicar and clearly mandates a consent from either of these two personalities for initiating a litigation) the sanction of the ordinary was not necessary; and that the plaintiffs who were the elected representatives, entrusted with the administration of the Church, were competent to initiate civil proceedings before the Civil Court. And that under the Canon law, the temporal goods belong to the parish (which, by law, was a public juridic person) and every administrator was bound to protect the property of the Church with the diligence of a good house holder; and also that the plaintiffs, individually, being the parishioners of the Church, were competent to represent the ‘juridic person’.

  The right of worshippers to file suits, for reliefs outside S. 92 CPC, is well accepted.[22] It has been clearly laid down by the Supreme Court in Deoki Nandan Vs. Murlidhar[23]  that the worshippers have a ‘beneficial interest’ (not the ‘proprietary interest’ or interest pertaining to owners). A worshipper has his own right to institute a suit to protect his right to worship and for that purpose to protect the debuttar property and that he can do so in his personal capacity as worshipper and not as a next friend of the deity. [24] Even in matters where Indian Trusts Act applies, Section 63 of the Indian Trusts Act is not exhaustive of remedies available to a beneficiary. Where the trustee has improperly alienated trust property the beneficiary can sue third parties for more effective reliefs than those contemplated by Section 63.[25]

When the Shebait acted adversely to the interest of the idol and fails to take action to safeguard its interest, it was held by our Apex Court in Bishwanath Vs. Thakur Radha Ballabhji[26] that there was no justification for denying the right to a worshipper to file suit to seek appropriate reliefs. The Supreme Court observed that it had been held in a number of decisions[27] that worshippers may file a suit praying for possession of a property on behalf of an endowment. It was also observed that an idol was in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol could certainly be clothed with an ad hoc power of representation to protect its interest.  In Ramchand Vs. Janki Ballabhji Maharaj[28] the Supreme Court held that a person, who has made large donations for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession of the temple and its property against the Pujari or Manager, on behalf of the deity to protect the property from mismanagement or misappropriation.

12. No Taxing When Members Avail the Facilities

In Commissioner of Income-tax Vs. Darjeeling Club Ltd.[29]  a Division Bench of Calcutta High Court observed that there was a long line of decisions in which it had been held that supplies made by a club to its members or the facilities afforded by a club to its members for a price would not amount to business activity of the club, even though there might be surplus of revenue over expenditure and the surplus could not be taxed as business profits if the sales were confined to the members of the Club only. There cannot be any distinction, with respect to this matter, between a temporary member and an honorary member. Any surplus contribution will be held for the benefit of the members. The benefit of the surplus fund must go back to the members as a class.

Where facilities including accommodation is provided to the members through the instrumentality or agency of the Club, neither the Club is the landlord, nor the members – during their stay – are the tenants of the Club. The members by virtue of their membership are entitled to avail of the facilities of their Club (accommodation) according to its rules, as of right. What is paid by the members for their accommodation cannot be treated as rent and the income cannot be regarded as income from the house-property under the Income Tax Act.[30]

13. Admission of New Members

The bye laws of a Society or a Club prescribe the qualifications of the Members to be admitted. They are in the nature of contract between the members. Therefore the right of admission of new members also remains at the will and option of the members.[31] The State or an enactment cannot compel admission of members, contrary to the bye laws of a Society.[32] What is the ‘interest’ of the Society or a Club is to be determined by the society.[33]

14. Instances When Court Interferes

See Chapter: Court’s Jurisdiction to Interfere in the Internal Affairs.

15. Disqualification of Members

Section 21(1)(g) of the Telangana Co-operative Societies Act, 1964, provides that a person shall be disqualified for being a member if he fails to attend two consecutive annual General Body meetings without leave of absence. Proviso to sub-Section (3) of Section 21 states that “no member shall be removed under this sub-Section unless he had an opportunity of making a representation against the proposed action of removal and a copy of resolution removing the member shall be communicated to such person and on such communication, he shall be deemed to have ceased to be a member of the  society”.

In Bollineni Ravindranath Vs. Sate of Telangana[34] the The High Court of Telangana held that exclusion of members of the society from the voters list of eligible voters for not attending two consecutive General Body meetings of the society was patently illegal. It was pointed out that there was no material to show that they followed the procedure in Section 21(3) proviso to disqualify any member who did not attend two consecutive Annual General Body meetings without leave of absence, by giving him an opportunity of being heard as mandated by the proviso thereto, and thereafter such member was removed by the General Body of the society.

In Arun Laxman Ashan Vs. Jeevan C Idnani[35]  details furnished by respondents as to forming front were rejected on the ground that the same were not in accordance with the requirement under the rules. Though steps were taken by respondents within time limit, certain documents were not filed within the time limit. No opportunity was given to respondents to cure such defects. The Bombay High Court held that the provisions of Rule 5, directing time-limit to furnish (proper) application, was directory and not mandatory.

Whether the edict in a statute is mandatory or directory is to be determined with reference to the nature and circumstance in which it is given. In Pratap Singh Vs. Krishna Gupta[36] the Supreme Court has observed that some rules are vital and go to the root of the matter; that they cannot be broken; that others are only directory and breach of them can be overlooked provided there is substantial compliance with the Rules read as a whole and provided no prejudice ensues; and that it is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment is obeyed or fulfilled substantially. In Hari Vishnu Kamath Vs. Ahmad Ishaque[37]  it is stated as under:

• “It is well-established that an enactment in form mandatory might in substance be directory and that the use of the word shall does not conclude the matter. The question was examined in length in Lulius v. Bishop of Oxford (1880) 5 AC 214 and various Rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the Legislature which is the determining factor and that must ultimately depend on the context.”

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[1]      See: Sec. 9-14, 17 and 20.

[2]  But various States’ amendments (and State-Acts) provide for the same.

[3]     Alty Vs. Farrell: (1896) 1 QB 638;      Kruse Vs. Johnson: (1898) 2 QB 91,      Scott Vs. Pilliner: (1904) 2 KB 855,      Repton School Governors Vs. Repton Rural District Council:(1918) 2 KB 133;      Chester Vs. Bateson: (1920) 1 KB 829;      Attorney General Vs. Denhy: 1925 Ch 596:      All referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[4]    AIR 1988 Mad 27

[5]   Zoroastrian Co -operative Housing society Ltd. Vs. District Registrar, Co -operative (Urban) AIR  2005 SC 2306;        State of U.P. Vs. C.O.D. Chheoki Employees’ Co-op. Society Ltd : AIR 1997  SC  1413;        Supreme Court Bar Association and Ors. Vs. B.D. Kaushik: (2011) 13 SCC 774. 

[6]      AIR 1971 SC 966

[7]      2008 – 2 ADJ 222, 2008-71 All LR 698

[8]      Implemented with effect from 15^th February, 2012

[9]      Lok Sevak Cooperative House Building Society Ltd. Vs. S.P. Goyal: 1997 (1) RCR(Civil) 14

[10]    ILR 1997 Kar 3127

[11]    J. K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of UP: AIR1990 SC 1808;        Union of India Vs. Gopal Chandra Misra: AIR 1978 SC 694

[12] ILR 1997 Kar 3127

[13]    Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585: AIR 1990 NOC 26(Del).

[14]    Satyavart Sidhantalankar Vs. Arya Samaj, Bombay: AIR 1946 Bom 516;         Nagappa Vs. Madras Race Club: AIR 1951 Mad 831;        Shridhar Misra Vs. Jaihandra: AIR 1959 All 598.

[15]    See also: CL Joseph Vs. Jos: AIR 1965 Ker 68;        Star Tiles Works Vs. N. Govindan: AIR 1959 Ker  254

[16]    AIR 1951 Mad 831

[17] Committee of Management Arya Kanya Pathshala Inter College Vs. State of U P: 2011- 2 ADJ 65.

[18]    AIR 1965 Ker 68.

Quoted in: Rajeev Saumitra Vs. Neetu Singh: 2016-198 Comp Cases 359.

[19]    Baby Mathew Vs. Agricultural Income Tax Officer: 1994-207 ITR 967: 1996-131 CTR 214: 1994 (1) KLT 786.

[20]    [1990] 79 STC 315 (P & H); ILR1991- 2 (P&H) 218

[21] 2013(4) Ker LT 283.

[22]    Vemareddi Ramaraghava Reddi Vs. Kondaru Seshu Reddi, AIR 1967 SC 436;        Bhagauti Prasad Khetan Vs. Laxminathji Maharaj: AIR 1985 All 228.         In this case distinguished (pointing out actual worship of the idol sans right to worship) Sri Thakur Krishna Chandramajiu Vs. Kanhayalal, AIR 1961 All 206.        See also: Jangi  Lal Vs. B. Panna Lal, AIR 1957 All 743;        Behari Lal Vs. Thakur Radha Ballabhji, AIR 1961 All 73

[23]    AIR 1957 SC 133

[24]    Sri Ishwar Vs. Gopinath Das: AIR 1960 Cal 741:        See also : Samit Pani Brahmachary Vs. Mayapur Chaitanya Math: AIR1999 Cal  132;        Thakurji Maharaj Vs. Dankiya: AIR 1986 All 247.

[25]    See: Janakirama Iyer Vs. Nilkanth Iyer: AIR 1962 SC 633

[26]    AIR 1967 SC 1044.

[27]    Radhabai Vs. Chimnaji: (1878) ILR 3 Bom 27,        Zafaryab Ali Vs. Bakhtawar Singh: (1883) ILR 5 All 497;        Chidambaranatha Thambirarn Vs. P. S. Nallasiva Mudaliar: AIR 1918 Mad 464,        Dasondhay Vs. Muhammad Abu Nasar: AIR 1917 Mad 112  (FB),        Radha Krishnaji Vs. Rameshwar Prasad Singh: AIR 1934 Pat 584;        Manmohan Haldar Vs. Dibbendu Prosad Roy: AIR 1949 Cal 199.        Following two decisions of the Privy Council were also referred to:        Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick: 52 Ind App 245: AIR 1925 PC 139        Kanhaiya Lal Vs. Hamid Ali: 60 Ind App 263: AIR 1933 PC 198 (1).

[28]    AIR 1970 SC 532.  See also Kt. N. Ram Thenappa Chettiar Vs. N. S. Kr. Karuppan Chettiar: AIR 1968 SC 915

[29]    1985 (153) ITR  676:  Referred to in Saturday Club Vs. Asst. Commr. Service Tax: 2005-1 Cal LT 575.

[30]    Saturday Club Vs. Asst. Commissioner Service Tax Cell Calcutta : 2005-1 Cal LT 575

[31]    Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973

[32]   Zoroastrian Co -operative Housing Society Ltd. Vs. District Registrar, Co -operative (Urban) AIR  2005 SC 2306.

[33]    State of Maharashtra Vs. Karvenagaar Sahakari Griha (2000) 9 SCC 295:  Zoroastrian Co -operative Housing Society Ltd. Vs. District Registrar, Co -operative (Urban) AIR  2005 SC 2306

[34] LAWS(TLNG) 2021 1 2

[35] 2018-5 MHLJ 59A

[36] AIR 1986 SC 140

[37] AIR 1955 SC 233

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Relevant provisions of Kerala Land Reforms Act (on Purchase Certificate,  Plantation-Exemption & Ceiling Area) in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Civil Rights and Jurisdiction of Civil Courts
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• Res Judicata and Constructive Res Judicata
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Vesting of Property in Societies and Clubs
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features

Trusts/Religion

• Philosophy of Idol Worship
• Vesting of Property in Public Trusts
• Dedication of Property in Public Trusts
• Is an Idol a Perpetual Minor?
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Public & Private Trusts in India.
• What is Trust in Indian Law?
• Incidents of Trust in Clubs and Societies
• Vesting of Property in Trusts
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional.