Kerala High Court
Ezhuthachan Educational Society vs The District Registrar on 26 February, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY,THE 26TH DAY OF FEBRUARY 2019/ 7TH PHALGUNA, 1940
WP(C).No. 37708 of 2018
PETITIONER/S:
EZHUTHACHAN EDUCATIONAL SOCIETY
322/92, THRISSUR, REPRESENTED BY ITS GENERAL
SECRETARY C.N. SAJEEVAN, S/O CHIRAKKAL NARAYANAN,
AGED 51, PERUMBILLISSERY, P.O.CHERPU, THRISSUR.
BY ADVS.
SRI.S.EASWARAN
SMT.P.A.MENISHA
SMT.SOUMYA JAMES
SRI.M.A.AUGUSTINE
SRI.P.MURALEEDHARAN (IRIMPANAM)
SRI.P.SREEKUMAR (THOTTAKKATTUKARA)
RESPONDENT/S:
1 THE DISTRICT REGISTRAR
(GENERAL), CHEMBUKKAVU, THRISSUR -680 020.
2 P.S.JAYAGOPAL
AGED 52 YEARS, BUSINESS, SON OF SANKARANARAYANAN,
RESIDING AT ANUGRAHA, UDAYA NAGAR, AYYANTHOLE
VILLAGE AND P.O., THRISSUR - 680 003.
3 M.A.KRISHNANUNNI
AGED 72 YEARS, SON OF MARAVATTIKKAL ACHUTHAN
EZHUTHACHAN, RESIDING AT PULLAZHY VILLAGE,
CHETTUPUZHA DESOM, THRISSUR - 680 012.
BY ADVS.
SRI.DINESH R.SHENOY
SRI.EBIN MATHEW
SRI.E.R.ANIL (A-1873)
SRI.P.ROHIT PREMANANDAN SHENOY
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1,
SRI.DINESH R.SHENOY FOR R2 AND R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 37708 of 2018
ALEXANDER THOMAS, J.
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W.P(C).No.37708 Of 2018
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Dated this the 26th day of February, 2019.
J U D G M E N T
The prayers in the above Writ Petition (Civil) are as follows:
"a) issue a writ of certiorari or other appropriate writs, directions or orders calling for the records leading upto Exhibit P7 order and quashing Exhibit P7 order;
b) issue a writ of mandamus or other appropriate writs, directions or orders restraining the 2nd respondent from representing the Ezhuthachan Educational Society, 322/92 Thrissur;
c) issue a writ of mandamus or other appropriate writs, directions or orders restraining the 1st respondent from further proceeding with Ext.P7 order, pending disposal of the writ petition.
d) to grant such other reliefs as this Honourable Court may deem fit just and proper in the circumstances of the case."
2. Heard Sri.S.Easwaran, learned counsel for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for 1st respondent and Sri.Dinesh R.Shenoy, learned counsel appearing for contesting respondents 2 & 3.
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3. The core of the factual elements required for the short disposal of this case are as follows:
From the pleadings and materials on record, it is seen that internecine battle is going on between the group/faction of the petitioner and that of the contesting respondents 2 & 3 in respect of the management of the affairs of the Ezhuthachan Educational Society No.322/92, Thrissur, which is a society registered under the provisions of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and the Rules framed thereunder and whose notified Registrar as per the enactment is the District Registrar (General), Thrissur. Earlier, the petitioner and the members of his group had submitted a list before the 1st respondent-notified Registrar, claiming to be the list of office bearers and the elected committee members of the said society for the ::4::WP(C).No. 37708 of 2018
year 2016-17 in terms of Sec.7(3) of the abovesaid Act and also the annual statement of accounts of the said Society for the accounting year 2016-17 as per Sec.13 of the said Act on the premise that the said list furnished by them is the list of the duly elected office bearers and members of the elected committee of the Society, etc. The said list and the statement of account as per Ext.P-2 furnished by the petitioner's group was accepted and acted upon by the 1st respondent as can be seen from the materials in Ext.P-3. Later, it appears that contesting respondents 2 & 3 have filed Ext.P-4 Original Suit, O.S.No.1484/2017 before the Munsiff's Court, Thrissur, wherein the General Secretary of the petitioner-Society, Sri.C.N.Sajeevan and another person, Aravindakshan, have been arrayed as defendants and the prayers in the said suit are to declare that the plaintiffs therein are the duly elected office bearers of the said ::5::WP(C).No. 37708 of 2018
society and also consequential release by way of injunction, etc. An interlocutory order was passed by the said civil court in Ext.P-4 suit as per Ext.R-2(m) order dated 28.3.2017, whereby an ad interim injunction order was granted by the said civil court restraining the defendants therein from conducting any meetings in respect of the affairs of the abovesaid registered society. It is not in dispute that the said interim order as per Ext.R-2(m) is still current. Thereafter, the contesting respondents 2 & 3 had pressed for orders in Ext.P-5 petition dated 25.3.2017 filed by them before the 2 nd respondent seeking for orders that the action taken pursuant to Ext.P-2 as is discernible from Ext.P-3 should be withdrawn and the list of office bearers and elected members of the committee as well as the statement of accounts of the society as furnished by contesting respondents 2 & 3 should be accepted by the 1st respondent-notified Registrar ::6::WP(C).No. 37708 of 2018
presumably placing reliance on the provisions of Sec.7(3) of the abovesaid Act. Pursuant to Ext.P-5 petition, the 1st respondent-notified Registrar has now passed the impugned Ext.P-7 proceedings dated 5.3.2018 whereby he has essentially recalled the acceptance of the list earlier furnished by the petitioner's group as per Ext.P-2 and has accepted the rival list of office bearers and elected members of the committee of the society as submitted by contesting respondents 2 & 3. At the outset, it is to be borne in mind that Ext.P-7 proceedings dated 5.3.2018 has been rendered by the 1st respondent, which is adversely affecting the petitioner and his group, without any prior notice or reasonable opportunity of being heard to the petitioner. Equally at the same breath this Court would note that the 1st respondent- notified Registrar, while accepting Ext.P-2 list of office bearers of members and elected members ::7::WP(C).No. 37708 of 2018
of the committee as well as the statement of accounts of the society furnished by the petitioner, had not issued any notice to contesting respondents 2 & 3, who are in the rival group.
4. Sri.S.Easwaran, learned counsel for the petitioner and Sri.Dinesh R.Shenoy, learned counsel for contesting respondents 2 & 3, have made various submissions in the matter. Without getting too much into the merits of such controversies, this Court is of the considered view that the limited controversy in this public law proceedings could be resolved from the perspective that the 1st respondent-notified Registrar has committed illegality and procedural impropriety both in acceptance of Ext.P-2 list without notice to contesting respondents 2 & 3 and also in its cancellation and acceptance of the rival list of contesting respondents 2 & 3 as per Ext.P-7 without hearing the petitioner. It ::8::
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is also not in dispute that a copy of impugned Ext.P-7 notice was not served on the petitioner, who is the beneficiary of Ext.P-2 list and the petitioner could obtain the same only subsequently as per RTI Act proceedings. In view of the above aspects, this Court is of the considered view that it may not be right and proper for this Court to examine the disputes from the prism posed before this Court in the private law issues that are otherwise relevant in a civil proceedings and this Court is conscious that the prism to be used for viewing the public law proceedings is the impugned decision making process which led to the present disputes. In that view of the matter, this Court has no hesitation to hold that both the impugned decision as per Ext.P-7 which is in favour of contesting respondents 2 & 3 and against the interest of the petitioner as well as the decision taken pursuant ::9::WP(C).No. 37708 of 2018
to Ext.P-2, as is referred to in Ext.P-3, which is in favour of the petitioner and which is adverse to contesting respondents 2 & 3 are vitiated by flagrant violation of elementary principles of natural justice and fairness and therefore it would require interdiction at the hands of this Court.
5. The next issue is as to the nature of the directions that should be issued by this Court to resolve the impasse.
6. Sec.7(3) of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, reads as follows:
"Sec.7: General meetings and minutes of proceedings of such meetings.-
xxx xxx xxx (3). A list of the members of the first governing body of a society shall be filed with the Registrar within fourteen days from the date of registration of the society and thereafter the list of the governing body shall be filed with the Registrar within fourteen days after the date of the annual general meeting."
Sec.13 of the above Act, reads as follows:
"Sec.13: Annual Balance Sheet .- (1) The governing body of every society shall at some date not later ::10::WP(C).No. 37708 of 2018
than eighteen months after the registration of the society and subsequently once at least in every calendar year lay before the society in general meeting a balance sheet and income and expenditure account for the period, in the case of the first account since the registration of the society and in any other cause since the preceding account made up to a date not earlier than the date of the meeting by more than six months.
(2). The balance sheet and income and expenditure account shall be audited in the case of the first balance sheet and account by an auditor appointed by the governing body and in the case of subsequent balance sheet and account, by an auditor appointed by the general meeting.
(3). The balance sheet and income and expenditure account shall be signed by at least three members of the governing body when the number of the governing body exceeds three and by all the members when the number is three.
(4). After the balance sheet and income and expenditure account have been laid before the society at the general meeting, a copy of the balance sheet certified by at least two members of the governing body, shall be filed with the Registrar within twenty one days from the date of the general meeting.
(5). If the requirements of this section are not complied with, the society and every member of its governing body, who knowingly and wilfully authorizes or permits the default, shall be liable to a fine of twenty rupees for every day during which the non-compliance continues, subject to a maximum of two hundred rupees."
In this regard it may also be apposite to bear the corresponding provisions in the Societies Registration Act (Central Act 21/1860). Sec.4 of the Societies Registration act, 1860 provides as follows:
"Sec.4: Annual list of managing body to be filed.- Once in every year, on or before the fourteenth day succeeding the day on which, ::11::WP(C).No. 37708 of 2018
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."
7. A Division Bench of this Court in the judgment dated 30.7.2018 in W.P.(C).No.25504/2018 has held as follows:
'5. A Division Bench of this Court in the judgment in C.M.Z.Musliar v. Aboobacker reported in 1998 (1) KLT 136 (DB) has dealt with the provisions contained in Sec.4 of the abovesaid Central Act and has held that when difference and dispute arises as to who are the members of the Governing Committee, the notified Registrar has discretion to conduct an enquiry and accept one list. It is profitable to refer to para.10 of the abovesaid Division Bench decision in C.M.Z.Musliar's case (supra) which reads as follows:
"10. In the aforesaid background, we have to find out the scope of S.4 of the Societies Registration Act. The filing of the returns with regard to the office bearers is for a purpose. The mere fact that the section does not clearly state that the Registrar has got power with regard to the acceptance of the returns does not mean that he can accept any number of returns with regard to the same society. That will not serve the purpose of filing of the returns as contemplated. Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body."
6. It appears that the Division Bench decision in C.M.Z.Musliar's case (supra) (in the judgment dated 08.12.1997 in W.A.No.1494 of 1997), was challenged before the Apex Court and the Apex Court in the judgment in A.P.Aboobaker Musaliar v. Distt. Registrar (G), Kozhikode and others reported in (2004) 11 SCC 247=(2004)KHC 1830, has held as follows in para.3 thereof, which reads as follows:
"3. In the order passed by the District Registrar, he has indicated reasons for accepting the list of members of the ::12::WP(C).No. 37708 of 2018
governing body filed by E.K.Aboobaker stating that he was filing the lists for the earlier years and, if the appellant was claiming on the basis that he was competent to file, he has to establish the same. Learned Single Judge has taken the view that under Section 4, the District Registrar has no power to adjudicate the controversy. The Division Bench of the High Court, in the impugned judgment, has observed thus:
"Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body."' Therefore, in view of the abovesaid dictum laid down by this Court in C.M.Z.musliar v. Aboobacker, reported in 1998 (1) KLT 136, as affirmed by the Apex Court, there is small vestige of discretion vested with the notified Registrar to conduct limited summary enquiry to ascertain about the genuineness of the list of office bearers and members of the elected committee of the society that may be furnished before the Registrar in terms of Sec.7(3) and annual statement of accounts of the said Society as envisaged in Sec.13 of the said Act. However, it is also to be borne in mind that when the ::13::WP(C).No. 37708 of 2018
inter se disputes and rivalry between the rival factions, when both of them claim to be the members of the elected committee and office bearers of the society concerned, then the task of the notified Registrar in exercising his limited vestige of discretion under Secs.7(3) and 13 of the Act is quite hazardous. This Court has held in the judgment dated 20.9.2014 in W.P.(C).No.18421/2014 by placing reliance on a judgment of the Division Bench judgment dated 4.11.2014 in W.A.No.1574/2014 that when the inter se disputes between the rivalries of that nature gets too hot, it may be better in the fitness of things that the Registrar may leave the parties to approach the civil court for appropriate interim orders so as to regulate the state of affairs until the disposal of the suit and on the final disposal of the suit, to ensure that the matter is regulated by the final verdict of the civil court in such disputes between the parties in the running of the affairs ::14::WP(C).No. 37708 of 2018
of the society concerned.
8. In the light of these aspects, it is ordered that the impugned decision rendered by the 1st respondent-notified Registrar as per Ext.P-7 proceedings dated 5.3.2018 as well as the decision rendered by him in accepting the list furnished by the petitioner, which resulted in Ext.P-3 will stand interdicted and set aside.
The matter will stand remitted to the 1 st respondent-notified Registrar for consideration of the issues in that regard afresh after granting a reasonable opportunity of being heard to the petitioner's group as well as contesting respondents 2 & 3 and their faction, either in person or through their authorised representative/counsel, if any. In this regard, the notified Registrar may examine the factual issue comprehensively and may consider whether this is a fit case where he can exercise the limited jurisdiction by way of summary enquiry to ::15::
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decide the genuineness of the lists that are furnished before him by the rival groups. Further this Court would certainly caution the 1st respondent that if the disputes presented by the rival factions are highly controversial and the matters may not be amenable for any resolution through the limited summary enquiry procedure, then in the fitness of things, he might leave the parties to approach the civil in Ext.P-4 Original Suit or in the appropriate civil proceedings to ensure that the matter is regulated by the interlocutory order or final verdict of the civil court as the case may be, in such disputes between the parties in the running of the affairs of the society concerned. In this regard, this Court would note the pendency of Ext.P-4 O.S.No.1484/2017 filed by the contesting respondents 2 & 3 herein wherein the petitioner and another person have been arrayed as defendants and in such a situation, in case the ::16::WP(C).No. 37708 of 2018
1st respondent-notified Registrar takes such a course of action, then it will be open to the petitioner or contesting respondents 2 & 3 to approach the civil court either in the pending suit or in any other appropriate civil proceedings for securing necessary interim orders, etc.
9. Immediately after obtaining a certified copy of this judgment, both parties or their authorised representatives will immediately approach the 1st respondent, who will then issue a notice in writing scheduling the date of hearing on a near available date and both sides should attend the personal hearing and the 1 st respondent will take a decision as aforedirected without much delay, preferably within 2 weeks from the date of production of a certified copy of this judgment. It is also made clear that until orders are passed by the 1st respondent, it will be open to him to pass appropriate ad-interim ::17::WP(C).No. 37708 of 2018
orders to regulate interim state of affairs of the registered society, pending such decision to be taken by R-1 as aforedirected.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
Bkn/-
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APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF ODER DATED 6TH APRIL, 2017 IN I.A.NO.645 OF 2017 IN O.S.NO.175 OF 2017 OF THE COURT OF THE FIRST ADDL.MUNSIFF, THRISSUR.
EXHIBIT P2 COPY OF LIST OF OFFICER BEARERS OF PETITIONER SOCIETY FILED BEFORE THE 1ST RESPONDENT.
EXHIBIT P3 COPY OF RECEIPT DATED 5/1/2017 ISSUED BY THE 1ST RESPONDENT EVIDENCING RECEIPT OF EXT.P2.
EXHIBIT P4 COPY OF PLAINT IN O.S.NO.1484 OF 2017 ON THE FILE OF THE MUNSIFF COURT, THRISSUR.
EXHIBIT P5 COPY OF ALLEGED AFFIDAVIT DATED 25/3/2017 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXHIBIT P6 COPY OF APPLICATION DATED 13/9/2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P6 A COPY OF COMMUNICATION DATED 17/9/2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P7 COPY OF ORDER DATED 5/3/2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE UN-AMENDED BYLAW OF THE SOCIETY.
EXHIBIT P9 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 12/09/2018 SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE REPLY RECEIVED FROM THE 1ST RESPONDENT ON 14/09/2018.
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EXHIBIT P11 TRUE COPY OF THE WRITTEN STATEMENT FILED ON BEHALF OF THE PETITIONER TO OS NO.1484/2017.
EXHIBIT P12 TRUE COPY OF THE ORDER OF THE 1ST ADDITIONAL DISTRICT JUDGE IN CMA NO.29/17 AND CMA NO.30/2017.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 V EXHIBIT R2 A TRUE PHOTOCOPY OF THE REGISTERED
BYELAWS OF THE EZHUTHACHAN EDUCATION SOCIETY.
EXHIBIT R2 B TRUE PHOTOCOPY OF REGISTERED BYELAWS OF THE AKHILA KERALA EZHUTHACHAN SAMAJAM REG. NO.13/1969.
EXHIBIT R2 C TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 20/05/2016. EXHIBIT R2 D TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 08/08/2017. EXHIBIT R2 E TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 10/04/2018. EXHIBIT R2 F TRUE PHOTOCOPY OF THE RETURN OF OFFICE BEARERS AND THE INCOME AND EXPENDITURE STATEMENT PASSED BY THE ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 20/05/2016. EXHIBIT R2 G TRUE PHOTOCOPY OF THE RETURN OF OFFICE BEARERS AND THE INCOME AND EXPENDITURE STATEMENT PASSED BY THE ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 08/08/2017 TOGETHER WITH RECEIPT ISSUED BY THE FIRST RESPONDENT.
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EXHIBIT R2 H TRUE PHOTOCOPY OF THE RETURN OF OFFICE BEARERS AND THE INCOME AND EXPENDITURE STATEMENT PASSED BY THE ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 10/04/2018 TOGETHER WITH RECEIPT ISSUED BY THE FIRST RESPONDENT.
EXHIBIT R2 I TRUE PHOTOCOPY OF COMMUNICATION FROM THE UNIVERSITY OF CALICUT DATED 14/03/2016. EXHIBIT R2 J TRUE PHOTOCOPY OF LETTER DATED 18/04/2016 ISSUED BY UNIVERSITY OF CALICUT.
EXHIBIT R2 K TRUE PHOTOCOPY OF GO(MS) NO.63/16/HED DATED 01/03/2016.
EXHIBIT R2 L TRUE PHOTOCOPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 12/01/2017.
EXHIBIT R2 M TRUE PHOTOCOPY OF ORDER DATED 28/03/2017 IN IA NO.5787/2017 IN OS NO.1484/2017, IIIRD ADDITIONAL MUNSIFF'S COURT, THRISSUR. EXHIBIT R2 N TRUE PHOTOCOPY OF IA NO.5787/2017 IN OS NO.1484/2017, IIND ADDITIONAL MUNSIFF'S COURT, THRISSUR.