How and where to challenge the Election of Society / Board of Management / AOA?

Introduction

A Group of persons may form an association and give it a formal structure by registering it as a society under the Societies Registration Act, 1860.  Under different statutes associations are mandatorily to be formed and be registered as a society. Such association are often referred as statutory associations.  The affairs of such statutory associations are partly managed under the concerned Act mandating its formation, however, when it comes to the affairs of election of Board/Committee of Management of the societies, then it is the Societies Registration Act, 1860 with the concerned State amendments takes the primary spot.

By means of this article, the author tries to shed some light on various aspects of challenging the election of Board of Management of an Apartment Owners Association (“AOA”) if in case there is / are persons/ members aggrieved against the procedure followed in conducting the election.  By means of following frequently asked questions we try to answer various aspects relating to  challenging election of Board of Management of an Apartment Owners Association or that of a registered society in Uttar Pradesh:

Q.        What is Board of Management of an Apartment Owners Association?

As per Section 3 (f) of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, the “Board” means Board of Management of an Association of Apartment Owners elected by its members under the Model Bye-laws.  As per the Model Bye-Laws, the affairs of Associations are governed by such Board of Management which should comprise of neither less than four nor more than 10 persons to be constituted and elected by the members of such AOA by simple majority in the General Body Meeting.  The principal office bearers of the Board are President, Vice President, Secretary and Treasurer, all of whom shall be elected by and from the Board.  The Board may even appoint an Assistant Secretary and an Assistant Treasurer and such further office bearers as the Board may consider necessary.

Q.        Who can challenge the election of the Board members?

Under Section 25 (1) of the Societies Registration Act, 1860, aggrieved persons can challenge the election or continuance of any office bearer in office of the AOA by taking any of the following two ways:

• The aggrieved person(s), if they are less than one-fourth of the members of the Society/AOA, may file an application before the concerned Registrar of Societies (where the Society/AOA is registered) specifically pointing out defects in the election along with evidence.  On being prima facie satisfied the Registrar of Societies shall refer such matter to the Prescribed Authority for adjudication in a summary manner.  The Prescribed Authority is generally SDM in Uttar Pradesh.

• If in case at least one-fourth of the members of a Society are aggrieved against the election, then, petition challenging such election can be filed directly before the Prescribed Authority.

 

Q.       What grounds need to be satisfied before the Prescribed Authority for setting aside the election of a Board or an office bearer?

Election of a Board or an office bearer shall be set aside where the Prescribed Authority is satisfied:

• that any corrupt practice (with respect to election under challenge) has been committed by such office bearer;

• that nomination of any candidate has been improperly rejected; or

• that the result of the election in so far it concerned 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 of the provisions of any Rules of the Society.

Q.        What is corrupt practice by a candidate in election of a Society?

The person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person:

• induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election;

• with a view to inducing any elector to give or to refrain from giving vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;

• abets (within the meaning of the Indian Penal Code) the doing of any of the acts specified in Clauses (i) and (ii);

• induces or attempts to induce a candidate or elector to believe that he, or any person in which he is interested, will become, or will be rendered as object of divine displeasure or spiritual censure.

• canvasses on grounds of cast, community, sect or religion.

Q.        Can members approach directly before the Prescribed Authority (SDM) with election petition?

If in case 1/4^th members of a Society raise doubt or dispute relating to the election of the members of the Board of Management or Society, the matter automatically goes to the Prescribed Authority for decision and in such cases the Registrar of Societies does not come into the picture.

Q.        What is the scope and power of the Prescribed Authority?

Election may be taken to encompass the whole procedure; right from the stage of inviting nomination paper up to that office taking poll and necessary subsequent steps for declaring the result.  The election of an office bearer is distinct, independent and separate from the election of another office bearer.  Therefore, election is to be referred to the election of an office bearer and his continuance in the office of a Society.  The law provides that the Prescribed Authority may adjudicate the “doubt and dispute in respect to election or continuance in office of an office bearer” takes into its ambit the entire election process including the eligibility and qualification of an elected office bearer.  Each and every aspect of the election can be scrutinized by the Prescribed Authority including non-compliance of any of the provisions of the Bye-laws.  Section 25 envisages reasons in a summary manner by the Prescribed Authority by finding out as to whether there was any corrupt practice by the concerned office bearer or whether nomination of any candidate has been improperly rejected or whether the result of election was materially affected by improper acceptance of any nomination or improper reception, refusal or rejection of any vote or receipt of any vote which void or by any non-compliance with any Rule of the Society, the Prescribed Authority cannot enter into questions as to who has voted whom.

The Prescribed Authority constituted under Section 25 of the Act, as is manifest from a reading of that provision, is empowered to rule not just upon disputes connected with elections but also consider questions relating to the right of “continuance” of office bearers or members of a society. Vide. Committee of Management Subhash Chandra Bose Smarak Vidyalaya Isipur and Ors. vs. State of U.P. and Ors. (25.11.2020 – ALLHC)

Q.        Can Registrar adjudicate itself the election dispute without referring same to the Prescribed Authority?

If a dispute in respect of the election of the office bearers or their continuance, quo a registered Society, said dispute must necessarily be referred to the Prescribed Authority under Section 25(1) of the Societies Registration Act, 1860 (as amended in U.P.).  Where there is a bonafide petition raising dispute against an election, the Registrar of Societies is required to refer such matter to the Prescribed Authority.  The legal position in that regard has been settled in the judgment in Committee of Management vs. Secretary, Arya Kanya Inter College as well as in Sitaram Rai vs. Additional Registrar (2003).

Q.        What if election is set aside by the Prescribed Authority?

If case is set aside by the Prescribed Authority, then order thereof is communicated to the Registrar of Societies at the earliest.  On receipt of such order the Registrar is required to conduct election by exercising its power under Section 25(2) of the Societies Registration Act, 1860 as soon as possible.  The Registrar of Societies has to conduct elections itself and it cannot be delegated to any other Authority like District Magistrate or City Magistrate.

Q.        Who will manage the Society in case election of Board/ Office Bearers is set aside by the Prescribed Authority / can Prescribed Authority or Registrar appoint any authorized Controller or Administrator to conduct the routine affairs of the Society/AOA?

The Prescribed Authority or the Registrar or for that matter any authority in U.P. does not have any power to appoint any authorized Controller or Administrator to conduct the affairs of an AOA where election of its office bearers / Board has been set aside by the Prescribed Authority.   The Model Bye-laws has very explicitly mentioned that the existing Board of Management shall continue to function until and unless its successors have held their first meeting.

However, when it comes to election of Committee of Management of any other Society other than AOA, then appointment of Administrator / authorized Controller of which depend entirely upon the Bye-Laws.  In case the Bye-Laws do not provide for appointment of an Administrator or authorized Controller, then no authority can appoint authorized Controller or Administrator to administer the affairs of the Society (vide /Arya Pratinidhi Sabha & Ors. vs. Sub Divisional Magistrate) 1860 AWC 415 All.

Q.        What is the nature of proceedings before the Prescribed Authority under Section 25 (1) of the Societies Registration Act, 1860?

Proceedings under Section 25(1) before the Prescribed Authority are summary proceedings where the Prescribed Authority derives its power to decide disputes in a summary manner, meaning thereby that the Prescribed Authority is required to decide the disputes in the faster manner possible, however, without violating the principles of natural justice.

Q.        What should be the prayer in case the electoral college is being made the ground to challenge the election results?

In case the aggrieved persons are challenging election on the ground that the electoral college / voter list was wrong, then, a prayer must be made to set aside the electoral college as well as the election result (vide Kisan National Education Trust & Ors. vs. Prescribed Authority (Sub Divisional Magistrate, Jaunpur & Ors.) (2019) 1 ADJ 817.

Q.        Can the Board which is under challenge declare/conduct new election on the expiry of their term even during pendency of election petition?

            There are situations where election petitions filed before the Prescribed Authority are not even decided or get so much delayed that even the term of the Board which is under challenge get expired i.e., the tenure of the Board ceases.  Under such circumstances, the pendency of election petition does not create any embargo against conducting fresh elections as per the Bye-laws of the AOA or that of any other Society.

Q.        Whether a Civil Suit can be filed before the Civil Court of competent jurisdiction in matter of dispute pertaining to election of the office bearers of the Board?

In various cases the Hon’ble High Court of Allahabad and Hon’ble Supreme Court have held that a Civil Suit is maintainable in case of disputes pertaining to the election and eligibility of a person to be an office bearer if in case the grounds taken by the Plaintiff differs from the grounds given in the proviso to sub-section (1) of Section 25 for setting aside election of an office bearer.