When bye-laws authorised Secretary, mere absence of resolution would not make Petition filed by Secretary non-maintainable – High Court
In a recent judgment, Allahabad High Court has held that when bye-laws of the society categorically provided that the proceedings by or against the Society shall be conducted under the authority of the Secretary, in absence of the Resolution the petition can not be termed as not maintainable
ABCAUS Case Law Citation:
4544 (2025) (05) abcaus.in HC
Important Case Laws relied upon by Parties:
P, Nazeer v Salafi Trust and another
Baba Bariyar Shah Memorial Association v State of U.P.
Committee of Management A.K College
In the instant case, the Petitioner was a registered society who had filed a Writ Petition challenging the order passed by the Deputy Registrar, Firms Societies and Chits Lucknow whereby it had decided an issue regarding membership.
However, a preliminary objection was raised regarding the maintainability of the petition. It was contended that the petition had been filed by the Society through its Secretary. It was stated that the clause 10(4) of the bye-laws of the Society categorically states that any proceedings conducted by or against the Society shall be done by the Secretary after taking prior approval from the Committee of Management/Society. It was urged that the said byelaws
only permitted the Society to sue or be sued through its Secretary but in order to sue or be sued the Society must first pass a Resolution and in the instant case since the Resolution was not present on the date of filing of the petition, hence, the petition in itself was incompetent
In addition, another objection was raised that the writ petition was signed one month later than the date the affidavit was sworn on. It was urged that on the date when the affidavit was signed and sworn, the writ petition was not in existence and it had come to be filed at a later stage, for this reason as well the petition was not maintainable.
The petitioners submitted that the Society was governed by its bye-laws and in the bye-laws, it was categorically stated that the proceedings by or or against the Society shall be conducted under the authority of the Secretary. It was urged that once in the bye-laws itself it had been provided that it would be Secretary who is authorized to conduct or defend the proceedings and the Secretary had signed the petition, hence, it cannot be said that petition was not maintainable.
In furtherance, the petitioners also filed a supplementary affidavit bringing on record the notice, the agenda as well as the Resolution which was passed authorizing the Secretary to file and prosecute the instant petition.
The respondent objected to the supplementary affidavit and submitted that the mere fact that the Resolution which has been brought on record by the petitioners along with supplementary affidavit was of much later date which by itself is indicative of the fact that the petitioners duly acknowledge that authorization in favour of the Secretary was necessary prior to the filing of the petition or atleast by the time the petition came to be filed and since on the date of filing of the petition the Resolution was not there which came to be passed later, hence, the Secretary, did not have the authority to institute the writ petition, hence, the petition apparently was defective and deserves to be dismissed at this threshold.
The Hon’ble High Court observed that Section 6 of the Societies Registration Act does not in any manner suggests that the Secretary on its own may file any proceedings on behalf of the Society merely because in terms of Section 6, he is treated as one of the Principal officers of the Society. All what Section 6 indicates is the fact that the Society or a trust is to be sued through its Principal Officers who may be the Chairman, President, Secretary or other persons called by any other designation unless there is any contrary indication in the byelaws of the Society. In absence of any clear reference in the byelaws indicating or conferring power on any officer to represent the Society or in absence of the availability or the willingness of the President, Chairman or Secretary of such a Society only then such other person can institute the proceedings who is duly authorized by the Committee of Management/Society.
The Hon’ble High Court observed that in the instant case, the bye-laws of the Society clearly conferred power on the Secretary to represent the Society in legal matters, if that be so and the instant petition had been filed through the Secretary it cannot be held, at initial stage, that the petition had been instituted by an incompetent person who was not authorized.
However, the Hon’ble High Court clarified that whether prior approval is required that is a question of fact that needs to be considered.
The Hon’ble High Court opined that the Petitioner had filed a Resolution which authorized the Secretary to continue with the petition which was more in the nature of a ratification approving the act of institution of the writ petition by the Secretary.
The Hon’ble High Court opined that a post dated Resolution can give rise to an explicit inference that on the date of filing of the writ petition the Resolution was not there. However, it was equally true that even if an act has been done by a person who prima facie is authorized under bye-laws to represent the Society then without bringing on record any contrary material that the said Secretary was not authorized, an inference holding that the petition was not competent cannot be arrived at.
The Hon’ble High Court opined that subsequent resolution reflected the will of the members/Society to support the action of the Society represented through its Secretary to contest the proceedings. Even though this Resolution was post dated, much after filing of the writ petition but the fact remained that the person before this Court was the Secretary representing the Society and as per the bye-laws, Secretary was the competent authority to institute the proceedings, to that extent the institution of the petition cannot be faulted. Once the Committee has ratified the act of institution of the petition any irregularity in filing the petition, if any, stands cured.
Accordingly, it was held that the petition cannot be said to be bad for want of Resolution, specially, when it had been filed by the Secretary and any defect of prior approval by the Society stood rectified by the Resolution.
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