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The Management Board, Windsor … vs State Of U.P And 5 Others on 11 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

There is an association of apartment owners of the Windsor Park Group Housing Complex situate at 5 Vaibhav Khand, Indira Puram, Ghaziabad.

The Board of Management1 of the Windsor Residents Welfare Association through its vice President filed a writ petition challenging the order dated 13.3.2018 passed by the Deputy Registrar, Firms Societies and Chits2, Meerut holding that as the elections of the office bearers of the Society were not held within time the Registrar/Sub-Registrar is authorized to conduct the elections, and the consequential letters for holding the elections thereof.

The writ petition as filed by the Board has been dismissed by the writ Court vide judgment and order dated 13.11.2018. It is against the aforesaid dismissal of the writ petition that the appellant Board has preferred this appeal under Chapter VIII of Rule 5 of the Rules of the High Court.

The Windsor Park Residents Welfare Society was registered as a Society on 31.10.2007. The registration was valid for five years. It expired on 31.10.2012. The said registration was not renewed. In the meantime, the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 20103 was enforced w.e.f. 21st July 2010. The said Act mandates for an Association of apartment owners to be governed by the Model Bye-Laws as provided vide notification dated 16th November 2011.

In view of the Apartment Act, some dispute and confusion arose with regard to registration and renewal of the registration of the Society.

In connection with the dispute of its registration/renewal of registration Writ C No. 50907 of 2015 was filed wherein vide judgment and order dated 16.9.2015 certain directions were issued by the Court. Due to alleged non compliance of the said directions Civil Misc. Contempt Application No. 2562 of 2016 was filed wherein orders dated 20.8.2016 and 27.9.2016 were passed. In compliance with the orders of the High Court passed in the above Writ Petition and Contempt Application, an Association of apartment owners was constituted. In fact the Society in existence was reconstituted as an Association of apartment owners4. The Association adopted the model bye laws on 27.9.2013 and their adoption was duly recognized by the Deputy Registrar as well as the competent authority vide communications dated 27.9.2013 and 30.9.2013 respectively.

After the adoption of the model bye laws, the first elections of the Board consisting of 10 members were held in the month of September 2016 and the first meeting of the elected members was held on 18th September 2016. Thereafter, the elections of the Association were notified to be held on 24.11.2017 vide notice dated 1.11.2017. However, as no nomination was received till the last date, elections could not be held. There is nothing on record to establish that any elections of the Association to elect the members of the Board or its office bearers were ever held thereafter.

It is in the above back-ground that the Deputy Registrar passed an order dated 13.3.2018 recording that the Model Bye-Laws were adopted by the Association on 27.9.2013 and that according to Bye-law 18 of Chapter IV the term of the Board is one year. The order thus held that since the elections were not held in time, the term of the Board has come to an end or it is time barred and therefore the elections are to be held in accordance with Section 25(2) of the Societies Registration Act, 1860.5

Heard Sri Viplav Sharma, Vice President of the Board on behalf of the appellant. Learned Standing counsel has appeared for respondents no. 1,2,5 and 6, Sri Vrindavan Mishra for respondent no. 4 and Sri Abhijit Mukherji on behalf of the proposed interveners.

The basic submission of Sri Viplav Sharma, the Vice President of the Board of the above Association appearing in person is that the Deputy Registrar has no jurisdiction in relation to the Association and his order dated 13.3.2018 is without jurisdiction. The Societies Act is not applicable to the said Association which has to be governed strictly in accordance with the Apartment Act, its Rules and the Model Bye-laws. The said Act and the Model Bye-laws confers a permanent character upon the Board as it envisages that 1/3rd of its members would retire annually and for filling up of those vacancies periodically. Thus, making the Board to be of perpetual nature. Accordingly, the Deputy Registrar as well as the learned Single Judge manifestly erred in holding the Board as a whole to be non-est as the vacancies of the retiring members were not filled up in time.

The respondents in defence submitted that the Association is virtually a Society governed by the Societies Act. The order of the Deputy Registrar is therefore not without jurisdiction. The annual general meeting of the Association has to be held annually for electing the members of the Board including its office bearers. Therefore, non election of the members of the Board and its office bearers annually makes the Association time barred enabling the Deputy Registrar to exercise powers under Section 25 (2) of Societies Act.

Section 14 of the Apartment Act casts a joint responsibility upon the promoter and the apartment owners to form an Association of apartment owners and to get it registered for the administration of the affairs in relation to apartments, the property appurtenant thereto and for the management of common area and facilities.

Sub-section 6 of Section 14 authorizes the Government to frame Model Bye-Laws and to notify the same in the gazette. It mandates that such Association shall be administered according to the Model Bye-Laws and no departure, variation, addition or omission shall be made therein except with the prior approval of the competent authority.

Sub-section 7 of Section 14 inter-alia provides that the Model Bye-Laws shall provide for the number of apartment owners constituting the Board, composition of the Board and that 1/3rd members of the Board shall retire annually.

The Model Bye-Laws vide bye-law 18 provides that the affairs of the Association shall be governed by the Board which shall comprise of not less than 4 and not more than 10 persons to be elected by the members in the general body meeting. It shall have the President, Vice President, Secretary and a Treasurer as the office bearers who shall be elected by and from the Board.

The bye-law 26 provides for the election and the term of office of the members of the Board and its office bearers. It provides for holding an Annual General Meeting of the Association in the first quarter of each financial year and to elect not less than 4 and not more than 10 members including its President, Vice President and Treasurer from the members of the Association. It further provides that 1/3rd of the members of the Board shall retire annually.

Bye-law 27 provides that the vacancies in the Board other than that of removal of the office bearer shall be filled up by elections from the remaining office bearers.

In the light of the facts as narrated above and the respective contentions of the parties as well as the provisions of law referred to above, the following two points arise for consideration:-

i)Whether the Association is amenable to the provisions of the Societies Act; and

ii)Whether the Registrar/Deputy Registrar is competent to exercise jurisdiction under Section 25 (2) of the Societies Act as the Board is of a permanent nature, and can never be time barred even if elections are not held within time.

The word “Society” has not been defined in either of the two Acts with which we are concerned and the Rules framed thereunder. However, in common parlance a Society is an Association of persons formed for a particular purpose.

The Societies Act vide Section 1 provides for registration of Societies. It provides that any seven or more persons associated with particular field for any literary,scientific or charitable and for those purposes described under Section 20 of the Act may by subscribing their names to a Memorandum of Association get it registered as a Society under the Act.

Section 1 and 20 of the Societies Act which are relevant for our purpose are quoted below:-

1. Societies formed by Memorandum of Association and Registration:-

” Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section of the this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar from themselves into a society under this Act.”

20. To what societies the Act applies- The following societies may be registered under this Act:-

” Charitable societies the military orphan funds or societies established at the several presidencies of India, societies established for the promotion of Khadi and Village Industry, Panchayat Industry, Rural Development, science literature, or the fine arts for instruction, the diffusion of useful knowledge (the diffusion of political education), the foundation or maintenance of library or reading rooms for a general use among the members open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments or designs.

A conjoint reading of the aforesaid provisions makes it abundantly clear that a Society can be formed by a memorandum of association signed by any seven or more persons if they are associated for any literary, scientific or charitable purpose or for any other purpose as is described under section 20 of the Societies Act. The other purposes enumerated under Section 20 of the Societies Act are charitable, military orphan funds or Societies established at several presidencies of India, societies established for promotion of Khadi and village industry, Panchayat Industry, Rural Development, science literature, or the fine arts for instruction, the diffusion of useful knowledge (the diffusion of political education), the foundation or maintenance of library or reading rooms for a general use among the members open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments or designs.

To put it in a more comprehensive manner in view of the aforesaid two provisions a Society can be established under the Societies Act for the following purposes:-

(1) Literary;

(2) Scientific;

(3) Charitable;

(4) Military Orphan Funds;

(5) Societies at the Presidencies of India;

(6) Societies for the promotion of:-

(a)Khadi and Village Industry;

(b) Panchyat Industry;

(c) Rural Development;

(d) Fine Arts for instructions;

(e)The diffusion of useful knowledge (the diffusion of political education)

(f) Maintenance of Library;

(g)Museums and Galleries of painting and other works of Arts, collection of natural history; mechanical and philosophical inventions; instruments or designs.

None of the above two provisions envisages formation of a Society of apartment owners or for the purposes of administration of the affairs in relation to apartments and the property appertaining thereto. In this view of the matter, no Society can be formed registered under the said Societies Act for the apartment owners for the purposes of administering the affairs in relation to apartments. Therefore, an Association of apartment owners contemplated under the Apartment Act is not a Society in the strict sense which could be governed by the Societies Act.

The Apartment Act defines the “Association of Apartment Owners” as a group of owners of the apartments in accordance with bye-laws.

The Apartment Act no where prescribes for the procedure of registration of the association of apartment owners. However, it vide Sub-section 2 of Section 14 contemplates for the formation of the Association of apartment owners with an obligation upon the promoter to get it registered but the Apartment Act is completely silent as to where and in what manner the association is to be registered. Even the Rules framed under the Apartment Act no where prescribes for the manner in which such an Association has to be registered and before whom it has been so registered. Thus, the entire Apartment Act and the Rules are silent with regard to the manner of registration of such Associations and the authority before whom such Associations have to be registered.

The Model Bye-Laws vide bye-law 2 (i) however defines “Registrar” to mean, the Registrar under the provisions of the Societies Act. Since, the Apartment Act vide Section 14 (2) provides for registration of the Association of apartment owners it by necessary implication postulates the registration of Association of apartment owners before the Registrar under the Societies Act.

In this regard, Section 31 of the Apartment Act also acquires importance. It provides for the overriding effect of the said Act.

It reads as under:-

31. Overriding effect, of this Act:

“(1) The provisions of this Act, shall have effect, notwithstanding, any thing inconsistent therewith, contained, in any other law, for the time being, in force;

(2) Save as otherwise, expressly provided, in sub-section (1), the provisions of this Act, shall be, in addition to, and not, in derogation of, any other law, for the time being, in force.”

A plain reading of the aforesaid provision would reveal that the provisions of the Apartment Act are in addition and not in derogation of any other law enforced, meaning thereby that it is an Act in addition to the Societies Act. Moreover, none of the provisions of the two Acts are inconsistent with each other. Therefore, both enactments are parallel and complementary to each other.

Additionally, it is a guiding principle of statutory interpretation that if there is any anomaly between two statutory provisions or the enactments such an anomaly be avoided and the provisions be harmoniously construed so as to make the provisions or the enactments workable.

The Courts are obliged to interpret the laws to avoid “head on collusion” between the two statutory provisions of an enactment or two the enactments. This is for the reason that the Courts ought not to take away on one hand what has been provided by the legislature on the other while interpreting the statutory provisions.

The Apartment Act provides for registration of the Association of apartment owners but makes no provision of the manner of its registration and for the authority before whom it has to be registered. This has been provided in the Societies Act. The provisions of the Societies Act in this regard are not in conflict with that of the Apartment Act rather complementary.

In the instant case the provisions of the above two enactments have to be construed in such a way that the gaps in one ie., the Apartment Act may be filled up by taking aid of the other enactment ie., the Societies Act in so far as the matter of registration is concerned. This is a part of Rule of harmonious construction which is applicable not only in resolving the conflict between two provisions of the same Act and the provisions of the Act and the Rules framed thereunder but also for resolving conflict, if any, between the two different enactments.

Therefore, in harmoniously construing the provisions of the two enactments it is certain and beyond doubt that the Association of apartment owners constituted and established under the Apartment Act by necessary implication has to be registered before the Registrar in accordance with the Societies Act.

In M/s.Designarc Infrastructure Pvt. Limited6 the Division Bench of this court in dealing with the provisions of the Apartment Act and the Rules framed thereunder held that the Association of apartment owners is to be registered by the Registrar, Deputy registrar or Sub-Registrar under the Societies Act.

The relevant observation of the Division Bench is reproduced herein below:-

“(9) The association of apartment owners is to be registered by the Registrar, Deputy Registrar or Sub-Registrar under the Societies Registration Act as amended in the State of U.P. If bye-laws are in-conformity with the model bye laws as notified on 16.11.2011, the Registrar/ Deputy Registrar/ Sub-Registrar cannot refuse to register association on the ground that it contains less than minimum number of members of the society under the Societies Registration Act or that it does not comply with any of the provisions of the Societies Registration Act as amended in the State of U.P. The registration of the association is in compliance with the provisions of the U.P. Apartment Act, 2010, U.P. Apartment Rules, 2011 and model bye laws. It shall be the joint responsibility of the promoter and apartment owners to obtain the registration. The Registrar/ Deputy Registrar/ Sub Registrar shall not refuse to register the association, if the promoter does not join even after one month’s notice given by the apartment owners or 33% of the apartment owners, whichever is more. It is clarified that the completion of all infrastructure services and completion certificate from local authority will not be a ground to deny the registration, as the issuance of completion certificate depends on the steps to be taken by the promoter. The delay caused by him in obtaining such certificate will defeat the object of formation of the society and the enforcement of the rights and liabilities of the promoter and the apartment owners. In such case the society will be registered provisionally under the certificate to be given by the competent authority as defined in Rule 2 (c) of the Act, who will give a time period to the promoter to provide all infrastructure services and to obtain completion certificate, failing which the promoter will invite the punishment for the offence as prescribed under Section 25 of the Act including the punishment of imprisonment under Section 25 (1) of the Act.”

In view of the above, the Association of apartment owners has to be registered under the Societies Act with the Registrar in the manner provided thereunder notwithstanding the fact that it is technically not a Society as contemplated by the Societies Act.

Accordingly, on point no. 1 it is held that the Apartment Act is in addition to the Societies Act and since none of the provisions of the Societies Act are inconsistent with the Apartment Act, both of them stand together side by side supplementary to one another. It is further held that since the Association of apartment owners is virtually a Society, it has to be registered under the Societies Act before the Registrar/Deputy Registrar, Sub-Registrar in the manner prescribed under the Societies Act and that all other provisions relating to registration of Society including that governing the resolution of disputes of the Society would by necessary implication apply to the Association of apartment owners even though technically it may not be a Society under the Societies Act.

Now coming to the second point in issue, it is important to refer to Section 25 (2) of the Societies Act which reads as under:-

Disputes regarding election of office-bearers:-

(1)……………

(2) Where by an order made under sub-section (I), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the ruled of that society, he may call a meeting of the general body of such society for election such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorized by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.

(3)…………..”

It simply provides that where the Registrar is satisfied that any election of the office-bearer of the Society has not been held within time, he may call a meeting of the general body of the Society for electing such office-bearer which shall be presided over and conducted by the Registrar or by any officer authorized by him in that behalf.

Thus, in case office-bearers of any Society have not been elected within time specified, the Registrar is competent to call a meeting and get the office-bearers elected.

Section 14 of the Apartment Act provides for the Association of apartment owners and the bye-laws.

The relevant parts of Section 14 of the Apartment Act are reproduced herein below:-

14. Association of apartment owners, and Bye-Laws:-

“1. There shall be an Association of Apartment Owners, for the administration of the affairs, in relation to the apartments, and the property, appertaining thereto, and for the management of “common areas and facilities.

2. It shall be the joint responsibility of the promoter and the apartment owners, to form an Association. The promoter shall get the Association registered, when such numbers of apartments have been handed over to the owners, while are necessary, to form an Association, or sixty percent of the apartments, whichever is more, by way of sale, transfer, or possession, provided the building has been completed, along with all infrastructure services, and Completion Certificate obtained, form the concerned Local Authority.

(3)………………..

(4)………………..

(5)………………..

(6) The Government may, by Notification, in the Gazette, referred to, in sub-section (1), shall be administered, by the Association of Apartment Owners, and the Association shall, at its first meeting, make its Bye-Laws, in accordance with the Model Bye-Laws, so framed, and in making its Bye-Laws, the Association of Apartment Owners shall not make any “departure” from, “variation” of, “addition to”, or “omission” from, the Model Bye-Laws, aforesaid, except with the prior approval of the Competent Authority.

(7) The Model Bye-Laws, framed under sub-section (5), shall provide for the following, among other matters, namely:-

(a) the manner, in which the Association of Apartment Owners, is to be formed;

(b) the Election, from among apartment owners, of a Board of Management, by the members of the Association of Apartment Owners;

(c) the number of apartment owners, constituting the Board, the composition of the Board, and that one-third of members of the Board shall retire annually;

(d)……………

(e)……………

(f) …………..

(g) ………….

(h) ………….

(I) method of calling meetings of the association of Apartment Owners and the number of members of such Association of Apartment Owners;

(j) Election of a President of the Association of Apartment Owners and the number of members of such Association of Apartment owners;

(k) Election of a Secretary to the Association of Apartment Owners, from among the apartment owners, who shall be an ex-officio member of the Board, and shall keep two separate Minutes Books, one for the Association of the Apartment Owners, and the other, for the Board, pages of each, of which, shall be consecutively numbered and authenticated by the President of the Association of Apartment Owners, and shall record, in the respective Minutes Books, the Resolutions, adopted by the Association of Apartment Owners, or the Board, as the case may be;

(l) Election of treasurer, from among the apartment owners, who shall keep the financial records of the Association of Apartment Owners, as also of the Board;

(m) ……………

(n) ……………..

(o) ……………..

(p) …………….

(q) any matter, which may be required by the competent authority, to be provided for, in the Bye-laws, for the proper, or better administration of the property;

(r) such other matter, as are required to be, or may be, provided for, in the Bye-Laws.”

A reading of the aforesaid provisions makes it clear that the association has to adopt Model Bye-Laws notified by the Government and that it has no authority to make any departure from the same or any variation therein or to add or omit any thing therefrom. In other words, the Model Bye-Laws notified by the Government have to be adopted in the form notified.

The Association adopted the Model Bye-Laws and its adoption was duly recognized.

The Model Bye-Laws notified by the Government vide bye-law 18 provides that the affairs of the Association shall be governed by the Board which shall comprise of not less than 4 and not more than 10 persons who are to be elected by the members of the Association by simple majority in the general body meeting.

It further provides that the principal office bearers of the Association shall be President, Vice-President, Secretary and Treasurer. All of whom shall be elected by or from the Board. In addition to the above office-bearers, some other office-bearers may also be appointed,if necessary.

In view of the above provisions, the apartment owners are the members of the Association of apartment owners. The said members by simple majority elect between 4 to 10 members to comprise the Board and it is the obligation of the Board to elect the office bearers from amongst themselves. The relevant part of said Model Bye-Law 18 reads as under:-

18. Management of the Association:-

“The principal office-bearers of the Association, shall be a President, a Vice-President, a Secretary and a Treasurer, all of whom shall be elected by and, from the Board.”

The office-bearers are only those as described in Bye-law 18 of the Model Bye-Laws ie., the President, Vice President, Secretary and the Treasurer. So they have to be elected by or from the Board.

At the same time, the Model Bye-law 26 provides that Annual General Meeting of the Association shall be held in the first quarter of each financial year. It shall elect not less than 4 and not more than 10 members including its office-bearers ie. President, Vice Chairman, Secretary and Treasurer from amongst the members of the Association.

It reads as under:-

26. Election and term of Office:-

“(i) The Annual General Meeting of the Association, to be held in the first quarter of each financial year, shall elect neither less than 4, nor more than 10 Members, including the President, Vice President, Secretary, and Treasurer, from Members of the Association.

Provided, that no member, shall be eligible for election, if he has been found guilty of misusing the post during his previous term. The term of the office of the office-bearers of the Board shall be one year from the date of assuming office and they will be eligible for re-election.

Provided that a person cannot hold the same post continuously for more than two years.

According to the aforesaid Bye-law the members of the association elects the members of the Board between 4 to 10 in number including the office bearers vig. the President, Vice President, Secretary and the Treasurer. This election of the members as well as the office-bearers has to be in the Annual General Meeting of the Association.

This is partly in contrast to Bye-law 18 which provides for the election of the office bearers by and from the Board whereas Bye-Law 26 provides for election of even office bearers by the Association. This ambiguity in the two provisions is basically due to improper drafting of the Model Bye-Laws.

Now therefore we have to first resolve the controversy as to whether the office bearers are to be elected by or from the Board or by the members of the association.

In this regard, we are reminded of what has been said by Lord Denning7 which we quote below:-

“We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsence of it. That is an easy thing to do and it is a thing to which Lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry out, and we do this better by filling in the gaps and making sense of the enactment than by opening it to destructive analysis.”

Therefore, this controversy can be resolved by applying the principle of harmonious construction to avoid all anomalies, absurdity or conflict to make the law workable. There is no doubt that the elections of the members of the Board and office bearers has to be in the Annual General Meeting of all the members which is to be held in the first quarter of the year.

In this regard the use of the word ‘including’ in Bye-Law 26 acquires great importance. It provides not only for the election of 4 to 10 members of the Board but also of the office-bearers. The use of the words “by or from the Board” in Bye-Law 18 if read in the light of Bye-Law 26 means that the office-bearers have to be elected from amongst the members of the Board but by members of the Association as contemplated under Bye-Law 26.In other words, in the Annual General Meeting of the Association, first 4 to 10 members of the Board are required to be elected and then from these elected members the office bearers are to be elected by the Association itself and not the Board. This appears to be the true and logical intention behind the aforesaid Bye-Laws.

The writ Court observing that the provisions of the Model Bye-Laws would clearly show that the Board of the Association is to be elected by the apartment owners in the Annual General Meeting of the Association and that the election of President/Vice-President/Secretary and Treasurer shall also be made by the Members of the Association, though such office bearers are to be elected from amongst the members of the Board elected in the Annual General Meeting, went on to hold that the election of the office bearers shall be by the members of the association from amongst the members of the Board.

The aforesaid finding is in consonance with the reasoning of ours and as such we do not find any discrepancy in the said finding.

Sub-section 7 (c) of Section 14 clearly provides that the Model Bye-Laws shall make arrangement for the retirement of 1/3rd members of the Board annually. Similar is the provision contained in the Bye-Law 26 (iii) of the Model Bye-Laws.

In view of Sub-section 7 of Section 14 of the Apartment Act as well as the Model Bye-Law no. 26, 4 to 10 members of the Board are to be elected by the members of the Association in the Annual General Meeting and that 1/3rd of them shall retire annually to be substituted by the newly elected members thus making the Board a continuing body having perpetual existence provided the seats vacated by the retiring members are filled up in time. If this is not done a stage would come when all of them would retire by rotation. Obviously in the absence of fresh elections no one gets elected to fill up the vacancies rendering the Board member-less and defunct.

In view of the above conclusion, we do not approve of the finding of the learned Single Judge that the Board is not of a permanent nature. It is a perpetual body subject to above limitation.

The order impugned in the writ petition ie., the order of the Deputy Registrar dated 13.3.2018 records that the term of the Board of Management is one year. This is incorrect rather the Board is perpetual provided fresh members are elected annually in place of retiring members in time.

In the instant appeal we are not concerned with the elections of the members of the Board rather than the office-bearers of the Board. The office-bearers of the Board are to be elected by the members of the Association from amongst those persons who are elected as members of the Board.

The first and last elections of the Association were held on 18th September 2016 wherein 10 members were elected to the Board including its office-bearers. The term of the office bearers is one year only unless re-elected. Thereafter, no elections have been held to elect the members or the office bearers of the Board. Therefore, 3 members must have retired in September 2017 and another three in September 2018 leaving only 3 members as part of the Board. There is no material on record to establish that any fresh members were elected to the Board in place of retiring ones or that any office-bearer was elected by members of the Association either in September 2017 or in September 2018 in place of originally elected office-bearers from amongst 10 members of the Board.

In view of the above, it is clear and evident that the Association failed to elect not only its office-bearers but also the fresh members of the Board from whom the office bearers are to be elected within the time prescribed. Therefore in view of Section 25 (2) of the Societies Act Registrar/Deputy Registrar has rightly called a meeting of the general body of the Association for electing the office bearers.

Accordingly our answer to the second point is that the Board is of a continuing nature provided the vacancies of retiring members are filled up in time annually and that the Registrar/Deputy Registrar is competent to exercise powers under Section 25 (2) if the office-bearers are not elected annually in the general meeting.

The observation in the order dated 13.3.2018 of the Deputy Registrar that according to Model Bye-Laws the elections of the Board were to be held annually and since they were not so held their term has expired entitling the Registrar/Deputy Registrar to hold the elections is not very conducive to the provisions rather what the Deputy Registrar is trying to convey is that as in place of retiring members of the Board fresh members were not elected annually from whom office bearers were to be elected, the term of the office bearers stood exhausted necessitating elections of the members of the Board as well as the office bearers and since the elections of both have to be in the Annual General Meeting of the members of the Association, the elections be held according to Section 25 (2) of the Societies Act.

If we read the order of the Deputy Registrar in the light of the discussion made above, we would find that no illegality has been committed by the Deputy Registrar in directing for holding elections in accordance with Section 25 (2) of the Societies Act and that as the order is not one which may lead to miscarriage of justice rather it advances the cause of justice in the interest of the Association, the refusal on part of the writ Court interfere with the same is not unjustified.

In view of the conclusions drawn above we have no option but to dismiss the appeal.

After the judgment was reserved, the appellant moved an application for seeking immediate stay, as in the meantime election order dated 2.2.2019 was issued in order to hold the elections consequent to the order impugned in the appeal from which this appeal is arising.

Since we have decided the matter finally, there is no occasion for us to deal with the said application more particularly when the appeal has been dismissed and the validity of the basic order as upheld by the writ Court has been approved by us.

The appeal is accordingly dismissed. No orders as to costs.

 

 

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