Calcutta High Court
The Pei May Chinese High School & Anr vs The State Of West Bengal on 18 May, 2017
Equivalent citations: AIR 2017 (NOC) 642 (CAL.)
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Original Side
WP 391 of 2016
The Pei May Chinese High School & Anr.
-Vs.-
The State of West Bengal
With
WP 518 of 2016
Liang Miao Sheng & Ors.
-Vs.-
The State of West Bengal
Before : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Kalyan Bandopadhyay, Sr. Adv.
Mr. D. Saha Roy, Adv.
Mr. A Panda, Adv.
For the petitioners : Mr. S. Bandopadhyay, Adv.
(in WP 518 of 2016) Mr. S. Pal, Adv.
Mr. A. K. Nag, Adv.
For the respondent no. 4 : Mr. Jayanta Banerjee, Adv.
Mr. Sunil Kumar Chakraborty, Adv.
Ms. Rama Chakraborty, Adv.
Ms. Sreetama Neogi, Adv.
For the State : Mr. Amitesh Banerjee, Adv.
Mr. Bishajib Ghosh, Adv.
Heard On : 26.09.2016, 28.09.2016, 03.10.2016, 07.11.2016
10.11.2016, 17.11.2016, 24.11.2016
CAV On : 23.12.2016
Judgment On : 18.05.2017
Arijit Banerjee, J.:-
(1) The subject matter of challenge in both these writ petitions is an order passed by the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal, being the respondent no. 2 (in short 'the Registrar') being Memo dated 29-RFS dated 19 April, 2016. By the said order the Registrar has cancelled the registration of Pei Mey Chinese High School (the petitioner no. 1 in WP No. 391 of 2016 and in short 'the School') under the West Bengal Societies Registration Act, 1961. Since the issues of fact and law involved in the two writ petitions are the same the two writ petitions are taken up together for hearing and disposal. Undisputed facts of the case:
(2) The School applied for being registered as a society under the West Bengal Societies Registration Act, 1961 (in short 'the 1961 Act'). A certificate of registration dated 19 February, 2010 was issued by the Registrar. The petitioners in the second writ petition are members of the society.
(3) On 18 July, 2010 an election of the Managing Committee of the School was held wherein one Li Shih Lin was elected as the Secretary of the School/society and Liu Kuo Chao (petitioner no. 2 in WP 319 of 2016) was elected as the President of the School. Chen Khoi Kui (respondent no. 4 in the first writ petition) also contested as a candidate for the post of Secretary but was unsuccessful.
(4) On 17 August, 2010, complaints were lodged by three persons, namely, Chung Chih Ping, Li Wan Tho and Li Chih Hsing with the Registrar alleging that their names had been included in the Memorandum of Association of the society and the Regulations of the society without their consent and knowledge. Chung Chih Ping further contended in his complaint that his signature in the Memorandum of Association and Regulations of the society had been forged. All three persons requested the Registrar to cancel the School's registration as a society under the 1961 Act.
(5) One Li Shish Ting, claiming to be the Secretary of the School, filed an application under Sec. 156 (3) of the Code of Criminal Procedure, 1973 in the Court of the Learned Addl. Chief Judicial Magistrate at Sealdah, South 24 Parganas against the petitioner no. 2 on or about 27 September, 2010 alleging commission of offences under Secs.
419/420/120B/463/464/472/468 of the IPC and under Sec. 14 of the Foreigners Act. An FIR dated 19 October, 2010 was also filed by the said Li Shih Ting against the petitioner no. 2.
(6) The School represented by its Secretary Li Shih Ting filed WP No. 4 of 2011 in this Court alleging that the Registrar of Firms had not taken any action on the basis of the petitioner's application dated 17 August, 2010 for cancellation of the certificate of registration issued by the Registrar in respect of the said School. The said application was disposed of by Jayanta Kumar Biswas, J. (as His Lordship then was) by an order dated 10 January, 2011, operative portion whereof reads as follows:-
"I am of the view that the Registrar ought to have given urgent attention to the complaint dated August 17, 2010 when the allegation was that the certificate in question had been obtained by exercising fraud. Needless to say that the sixth respondent that was to be served with notice of the proceedings initiated on the basis of the complaint would have been free to agitate all questions including the question of the Registrar's jurisdiction to entertain the complaint for cancellation of the certificate and also to proceed with the proceedings during pendency of the civil suit. I think it will be appropriate to dispose of the petition directing the Registrar to give his decision in the matter.
For these reasons, I dispose of the writ petition ordering as follows. After giving an opportunity of hearing to all concerned and considering all points raised by the private respondent, the Registrar shall give a reasoned decision dealing with the allegations made in the petitioner's complaint dated August 17, 2010, within six weeks from the date of communication of this order. The decision shall be communicated to all at once. No costs. Certified Xerox."
(7) The registrar passed an order dated 25 January, 2012 rejecting the application for cancellation of the School's registration as a society under the 1961 Act, inter alia, on the ground that there is no provision for cancellation of registration by the Registrar under the provisions of the 1961 Act.
(8) The School represented by its Secretary Mr. Chen Khoi Kui filed WP No. 140 of 2012 challenging the Registrar's order dated 25 January, 2012. By an order dated 16 July, 2015 this court disposed of the said writ petition. Operative portion of the said order reads as follows:-
"Having considered the submissions of the parties, I am inclined to agree with Mr. Jayanta Banerjee's submission as regards Section 22 of the West Bengal General Clauses Act, 1899. The section seems to be quite clear and lays down that when a West Bengal Act empowers an Authority to issue orders then that power would include a power to rescind any order earlier issued. Section 21 of the General Clauses Act, 1897 is also to the similar effect.
Even otherwise, going by the first principles of law it is difficult to accept that an Authority which has been empowered to pass a particular order cannot rescind that order under any circumstances. If the authority is induced to pass an order by a party by practicing fraud on the Authority, it is inconceivable that the Authority cannot revoke the order once such fraud comes into light. However, this is an academic discussion as according to me section 22 of the Bengal General Clauses Act, 1899 clearly empowers the Registrar to rescind its earlier order granting registration to the said school.
In view of the aforesaid, the order impugned is set aside and the matter is remanded back to the Registrar for consideration afresh.
I make it clear that I have not gone into the merits of the case nor have I considered the correctness or otherwise of the other findings arrived at by the Registrar in the order impugned. The Registrar will be free to decide the application of the writ petitioners afresh uninfluenced by any observation made in this order and in accordance with law. This order does not bind the hands of the Registrar to decide the writ petitioners' application one way or the other. It is expected that the Registrar will pass a reasoned order after giving a hearing to the parties concerned. The Registrar shall dispose of the application of the writ petitioners within a period of one month from the date of communication of this order."
(9) The appeal preferred by the petitioner no. 2 herein against the said order dated 16 July, 2015 being APOT 498 of 2015 was disposed of by the Hon'ble Division Bench by an order dated 14 January, 2016, the operative portion whereof reads as follows:-
"So far as the question of power of review, apparently there is no substantive power of review provided in the Act in question. So far as the procedural review, it is inherent within the authority who passes the order.
In that view of the matter, learned Single Judge was justified in remanding the matter to the Registrar of Societies.
Coming to the argument of the learned Senior Counsel Mr. Bandopadhyay with regard to sections 25 and 26 of the Societies Registration Act, 1961, we are of the opinion, it has no application since they operate altogether under a different circumstances. It is left to the wisdom of the Registrar in the above circumstances to proceed with the matter keeping in mind the pendency of the criminal investigation as regards allegation of forgery of the signature, as mentioned above."
(10) Subsequently, the Registrar passed the order dated 19 April, 2016. (11) This order is under challenge in the two writ petitions. Contention of the petitioners:
(12) Mr. Bandopadhyay, Learned Senior Counsel appearing for the writ petitioners in the first writ petition submitted that the issue of forgery is pending before the Criminal Court. Hence, the Registrar could not have gone into that question. He submitted that the Registrar could not decide any issue beyond the scope of the complaint.
(13) Referring to paragraph 4 of the affidavit-in-opposition filed by the respondent no. 4, Mr. Bandopadhyay submitted that identical submissions were made by the respondent no. 4 before the Registrar by way of written submissions and solely on the basis of the averments made therein the Registrar has passed the impugned order. The Registrar has not considered the case of the petitioners. The School and the Tannery Owners' Association are two different entities. Hence, there was nothing illegal or irregular in registering the School as a society.
(14) Mr. Bandopadhyay submitted that the Registrar has exceeded his jurisdiction in passing the impugned order. Without coming to a finding that the registration was obtained fraudulently, the Registrar could not have exercised any power of review. He submitted that the Registrar could have relied on Sec. 22 of the Bengal General Clauses Act only if fraud was involved. In this connection Learned Senior Counsel relied on a decision of the Hon'ble Apex Court in the case of R.G. D'Souza-vs.-Poona Employees Union, (2015) 2 SCC 526. Learned Counsel relied on paragraphs 19, 20 and 22 of the reported judgment which read as follows:-
"19. As per Section 10 of the Act, the certificate of registration of a trade union may be withdrawn or cancelled by the Registrar of Trade Unions either on application of a trade union inviting the attention of the Registrar of Trade Unions or the Registrar may suo motu take cognizance under the said section. There is no mention in the said provision about cancellation of registration of the trade union on application by any other person. The said section permits the authority to cancel the registration of the trade union if it is obtained by fraud or mistake, but does not permit the authority to cancel the certificate of registration if the same is granted by mistake due to incorrect assessment or non-application of mind or mechanical act on the part of the authority.
20. Even for the sake of argument, it is accepted by us that the mistake is on the part of the Trade Union and in the opinion of the Registrar of Trade Unions in exercise of his powers under Section 10 of the Act cancels the certificate of registration of the trade union, then it must be preceded by an enquiry, followed by a show-cause notice, disclosing grounds for initiating action so that the same can be answered by the noticee union effectively. This was not done in the present case on hand and the same has been rightly held by the High Court. Further Regulation 8(2) of the Bombay Trade Unions Regulations, 1927clearly states that: '8(2) The Registrar on receiving an application for withdrawal or cancellation of registration shall, before granting the application, verify himself that the application was approved in general meeting of the Trade Union if it was not so approved, that it has the approval of the majority members of the Trade Union. For this purpose, the Registrar may call for such further particulars as he may deem necessary and may examine any officer of the union.'
22. With respect to the provisions of Sections 4, 5 and 6 of the Act and Rules, which provide for furnishing the details in the application to be submitted for registration of the Trade Union, the abovesaid provisions of the sections clearly state that they must be complied with for the applying Union to be entitled for registration. However, it is essential to note that the first proviso to Section 4; clauses (aa), (b) and (c) of Section 5(1); and clauses (ee) and (hh) of Section 6 were inserted to the Act only by Amendment Act 31 of 2001, w.e.f. 9-1-2002, whereas the Trade Union was registered in the year 1986 when part of the abovesaid provisions were not present. Therefore, in the present case on hand, although it was necessary for the Trade Union to comply with and provide all the necessary details under the abovesaid provisions that were relevant at the time of registration, the Registrar either by mistake or due to incorrect assessment or non- application of mind may have issued a certificate of registration to the Trade Union. This official act by the Registrar of Trade Unions cannot be nullified by him under Section 10 of the Act, but can only be rectified by the appellate authority or the writ court as rightly opined by the High Court in the impugned judgment."
(15) Mr. Bandopadhyay then referred to Secs. 22 and 23 of the 1961 Act. Sec. 22 pertains to the power of the Registrar to call for information or explanation from a society. Sec. 23 pertains to investigation into the affairs of a society if the State Government is of the opinion that such investigation is warranted. He submitted that these powers have not been exercised by the Registrar.
(16) Learned Senior Counsel then submitted that the respondents have strongly relied on newspaper reports to contend that the petitioner no. 2 is not the President of the School. He submitted that newspaper reports are no evidence at all and are not reliable. In this connection he referred to a decision of the Hon'ble Apex Court in the case of Union of India-vs.- Ranbir Singh Rathaur, (2006) 11 SCC 696. Learned Counsel relied on the Apex Court's observation at para 42 of the reported judgment which is to the effect that newspaper reports are not to be considered as evidence. The authenticity of the newspaper reports was not established by the writ petitioners. Even otherwise, this could not have been done in a writ petition as disputed questions of fact were involved. Learned Counsel also referred to a decision of the Hon'ble Apex Court in the case of Quamarul Islam-vs.-S. K. Kanta, 1994 Supp. (3) SCC 5. Learned Counsel relied on the following observations of the Apex Court at paragraph 48 of the reported judgment which reads as follows:-
"48. Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and publisher, PW4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the newspaper.............."
(17) In response to the point of lack of locus standi of the writ petitioners to maintain the writ petition urged by the respondents, Mr. Bandopadhyay relied on four decisions.
(i) Re Liverpool Taxi Owners' Association, (1972) 2 ALL ER 589. Lord Denning MR observed in his judgment that writs of prohibition and certiorari lie on behalf of any person who is a 'person aggrieved', and that includes any person whose interests may be prejudicially affected by what is taking place. It does not include a mere busy body who is interfering in things which do not concern him, but it includes any person who has a genuine grievance because something has been done or may be done which affects him.
(ii) Confederation of Ex-Servicemen Association-vs.-Union of India, (2006) 8 SCC 399. In paragraph 23 of the judgment, the Apex Court referred to its earlier decision in D. S. Nakara-vs.-Union of India and held that a registered society formed by a large number of old and infirm retirees who were individually unable to approach a Court of law for redressal of their grievance could approach the court of law on behalf of such retirees and had locus standi to maintain a writ petition.
(iii) M.S. Jayaraj-vs.-Commissioner of Excise, Kerala, (2000) 7 SCC
552. Learned Counsel relied on paragraph 14 of the judgment which reads as follows:-
"14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits."
(iv) Fertilizer Corporation Kamagar Union (Regd.) Sindri-vs.-Union of India, AIR 1981 SC 344. Learned Counsel relied on paragraphs 23 and 48 of the reported judgment which read as follows:-
"23. That disposes of the question as regards the maintainability of the writ petition. But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective because the parliamentary control of public enterprises is "diffuse and haphazard".
We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide."
48. If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But he belongs to an organization which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226. (See Judgment of Krishna Iyer J. in (1975) 2 SCC 702)." (18) Appearing for the petitioners in WP 518 of 2016, Mr. S. Bandopadhyay adopted the arguments of Mr. Kalyan Bandopadhyay. He further submitted that the petitioners are members of the society and they should have been given a hearing by the Registrar before the impugned order cancelling the society's registration was passed. He challenged the impugned order primarily as having been passed in breach of the principles of natural justice.
Contention of the respondent no. 4:-
(19) Appearing on behalf of the respondent no. 4 Mr. P. K. Das, learned Senior Counsel first referred to Article 19 (1)(c) of the Constitution of India. He submitted that a right has been given under the said Article only to a citizen of India. However, the petitioner no. 2 is admittedly not a citizen of India and is a foreigner. Reference was made to Sec. 2 of the Foreigners Act which defines a foreigner as one who is not a citizen of India. Mr. Das submitted that since the petitioner no. 2 is not a citizen of India, the instant writ petition is not maintainable at his instance.
(20) Mr. Das submitted that the petitioner No. 2 claims to be an elected President of the said School but no evidence in support of such claim has been placed on record. It is only a mere ipse dixit of the petitioner no. 2 and no material has been disclosed to show he is an office bearer of the said School.
(21) As regards the point of breach of the principles of natural justice, Mr. Das submitted that the Registrar duly invited all the parties to the meetings held before him. However, the petitioners chose not to attend the meetings. Mr. Das has placed on record copies of such notices.
Hence, submitted Mr. Das, there is no merit in the contention of learned Counsel for the petitioners that the order impugned was passed in breach of the principles of natural justice.
(22) Mr. Das then submitted that neither the petitioner no. 2 in the first writ petition nor his associates who are the petitioners in the second writ petition are members of the Chinese Tannery Owners' Association nor of the said School and they have never filed any nomination for contesting any election of the said Association or the said School. The Chinese Tannery Owners' Association was registered as a society way back in 1967 and the said School is a sister organization with an independent administrative Managing Committee. As such the writ petitioners have no locus standi to move the instant writ application. In this connection Mr. Das relied on a publication in the 'Overseas Chinese Commerce of India' dated 23 June, 2010 along with an English translation copy thereof. In this connection he referred to a decision of a Learned Single Judge of this Court in the case of Sand Carrier's Owners' Union-vs.-Board of Trustees for the Port of Calcutta, AIR 1990 Cal 176 and also to a decision of a Madras High Court dated 12 May, 2011 delivered in WP No. 28283 of 2010 (Cable Operators Association-vs.-Commissioner of Police).
(23) Mr. Das submitted that by filing the present writ applications, the petitioners have caused tremendous mental agony and financial loss to the respondent no. 4 and has caused closure of the said School from January, 2010. He submitted that the writ applications should be dismissed so that the children of the Chinese community at China Town, Calcutta, could have the benefit of Chinese education. Contention of the State:
(24) Mr. Amitesh Banerjee, Learned Senior Counsel appearing for the State submitted that the Registrar cancelled the registration of the said School primarily on the ground that there cannot be two societies at the said premises. Learned Counsel handed up to the Court copy of a written statement filed by the respondent no. 4 before the Registrar and submitted that it would appear therefrom that the issue of encroachment on another society's property was very much before the Registrar.
Hence, there is no merit in the contention that this point was not urged before the Registrar. Mr. Banerjee then referred to the Rules of Constitution of the Chinese Tannery Owner's Association which records that the Association has been functioning since 1944. It further records that the Association has a School of its own known as Pei May School Association at premises Nos. 1 and 2 Iswar Mondal lane, P.S. Tangra, Calcutta 700046. Unless these Rules are amended, the School could not be registered as a separate society. The impugned order is wholly justified.
Petitioners in reply:-
(25) Mr. Bandopadhyay submitted that in the writ petition filed at the instance of the respondent no. 4 and his associates challenging the registration of the School as a society, the present writ petitioner no. 2 in the first writ petition was impleaded as respondent no. 6. This amounts to an admission on the part of the respondent no. 4 that the petitioner no. 2 is an affected party and is an interested party. Hence, he clearly has locus standi to maintain the writ petition.
(26) As regards Article 19(1)(c) of the Constitution, Mr. Bandopadhyay submitted that the same has no bearing on a writ petition being filed by a non-citizen and the order of cancellation of registration of a society is amenable to judicial review.
Court's View:-
(27) Let me take up the point of locus standi first. The law relating to locus standi has undergone a sea change over the years. The strictness with which the Courts use to decide whether or not a person has locus standi to maintain a writ petition has been relaxed to a great extent.
Even if a person is remotely affected by a decision or an act of a public authority, that person would be considered to be having the standing to challenge such decision or act. If interest of one is even indirectly affected prejudicially, he would be entitled to maintain a writ petition challenging the act or the decision which adversely affects him. The question is whether the writ petitioner is a 'person aggrieved' or as the English Courts put it, a 'person interested'. So long as the petitioner is not a busy body or an interloper having no interest at all in the subject matter of the writ petition, and so long as he is affected, however minimally, by the order or action impugned, the Courts would hold that he has the locus standi to maintain the writ petition. The expanding concept of locus standi has been highlighted in several Apex Court decisions including the decisions in M. S. Jayaraj-vs.-Commissioner of Excise, Kerala (supra) and Fertilizer Corporation Kamagar Union (Regd.) Sindri-vs.-Union of India (supra).
(28) The petitioner no. 2 in the first writ petition claims to be the elected President of the School. The writ petitioners in the second writ petition claim to be the members of the society, registration whereof has been cancelled by the impugned order. Hence, prima facie they would be persons aggrieved by the impugned order. They would be persons interested in saying that the School is recognized as a society. Hence, they would appear to be having locus standi to maintain the writ petitions. Mr. Das, Learned Counsel for the respondent no. 4 in the first writ petition of course contended that the petitioner no. 2 in the first writ petition is not the elected President of the School. He never filed any nomination to contest any election of the governing body of the School. No documentary evidence has been brought on record to show that he is the elected President of the School. Mr. Das relied on a newspaper report. I am not inclined to rely on a newspaper report since the same is not to be considered as evidence. Cases are not very infrequent where newspaper reports do not portray the correct facts and on the contrary are misleading. I am inclined to give benefit of doubt to the petitioner no. 2 in the first writ petition in so far as his claim of being the President of the School is concerned. If he was not a key person in the management of the said School, he would not have been added as a party respondent in the writ petition filed at the instance of the respondent no. 4 in the first writ petition and his associates challenging the registration of the School as a society. Even if I were to hold that the petitioner no. 2 in the first writ petition is not the elected President of the School, it would not have made much difference since it has not been disputed by the respondents that the petitioners in the second writ petition are the members of the society of which registration has been cancelled by the impugned order. Hence, locus standi of the petitioners to maintain the second writ petition would be indisputable, since they would be directly affected by the impugned order.
(29) In view of the aforesaid, I dispose of the issue of locus standi in favour of the petitioners.
(30) Mr. Das contended that the petitioner no. 2 in the first writ petition is not a citizen of India and hence the right under Article 19(1)(c) of the Constitution is not available to him. Article 19(1)(c) states that all citizens have the right to form organizations or unions. According to Mr. Das, such fundamental right has been granted only to citizens of India and not to foreigners. Hence, the petitioner no. 2 cannot maintain a writ petition for enforcement of a right of forming an organization.
Mr. Das is right. In Anwar-vs.-The State of J. and K., (1971) 3 SCC 104, the petitioner was a foreigner as defined in the Foreigners Act. The Hon'ble Apex Court held that not being a citizen, the petitioner was not entitled to any fundamental right guaranteed by Article 19 of the Constitution. Again, in Dharam Dutt-vs.-Union of India, (2004) 1 SCC 712, the Hon'ble Apex Court held that Article 19 confers fundamental rights on citizens. The rights conferred by Article 19(1) are not available to and cannot be claimed by any person who is not a citizen of India. There are other pronouncements of the Hon'ble Apex Court to similar effect and it is fairly well-established that the fundamental rights under Article 19(1) of the Constitution are conferred only on citizens of India. Hence, the petitioner no. 2 in the first writ petition, being admittedly a Chinese national, is not entitled to maintain a writ petition for enforcement of a right under Article 19(1)(c) of the Constitution of India.
However, the aforesaid is not decisive in the instant case since the order of the Registrar has been impugned in the two writ petitions. The petitioners in the second writ petition have clearly stated that they are citizens of India. This statement has not been denied or disputed or in any manner controverted by the respondent no. 4 in his affidavit-in- opposition. Hence, I will have to proceed on the basis that the petitioners in the second writ petition are Indian nationals and are thus, entitled to maintain a writ petition to enforce their fundamental right under Article 19(1)(c) of the Constitution of India. (31) Two points remain for consideration. Firstly, whether or not the order impugned has been passed in violation of the principles of natural justice. In other words, whether an opportunity of hearing was given to the petitioners by the Registrar prior to passing of the impugned order. Mr. Das has produced the minutes of the proceeding before the Registrar dated 12 August, 2015 wherefrom it is clear that the petitioner no. 2 in the first writ petition was represented by Learned Advocate at the said meeting and on his prayer the hearing was adjourned for four weeks. Mr. Das has also produced a notice dated 14 August, 2015 issued by the Registrar both to the petitioner no. 2 and the respondent no. 4 in the first writ petition intimating that the next hearing would be held on 30 September, 2015. A further notice of the Registrar addressed to both the petitioner no. 2 and the respondent no. 4 in the first writ petition has also been handed up to me by Mr. Das recording that the second hearing was adjourned for a week on the prayer of learned Advocate for the petitioner no. 2 in the first writ petition (referred to as respondent no. 6 in the said notice) and intimating that the next meeting would be held on 7 October, 2015.
(32) By a notice dated 9 October, 2015 again addressed to the petitioner no. 2 and the respondent no. 4 in the first writ petition, the hearing was fixed on 15 October, 2015 by the Registrar. From the notice dated 22 February, 2016 issued by the Registrar it is clear that the fourth hearing that was scheduled on 11 February, 2016 was adjourned on the prayer of learned Advocate for the respondent till 2 March, 2016.
From the aforesaid notices, I have no doubt that more than sufficient opportunity of hearing was given to the petitioner no. 2 in the first writ petition by the Registrar. Hence, the contention that the impugned order was passed in breach of the principles of the natural justice has absolutely no basis. The contention is rejected. (33) The only point that remains for consideration is whether the order impugned was passed by the Registrar in excess of his jurisdiction as contended by Mr. Bandopadhyay, learned Senior Counsel for the petitioners in the first writ petition. In this connection, Mr. Bandopadhyay's submissions were two-fold. Firstly, he contended that in the absence of coming to a finding of fraud, the Registrar could not have exercised his power under Sec. 22 of the Bengal General Clauses Act, 1899 and ought not to have cancelled the registration certificate. This, according to Mr. Bandopadhyay, was a jurisdictional error on the part of the registrar.
With great respect to Mr. Bandopadhyay, I am unable to agree with him. Sec. 22 of the Bengal General Clauses Act, 1899 reads as follows:-
"S.22. Power to issue to include power to add do, amend, vary or rescind orders, etc._Where, by any Bengal Act or West Bengal Act, a power to issue orders, rules, bye-laws, or notifications is concerned, then, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any orders, rules, bye-laws or notifications so issued."
(34) By that Section an authority passing an order in exercise of power conferred on it by a Bengal Act or West Bengal Act, has been given the power to review its order by adding to or amending or varying or even rescinding the order. Thus, the Registrar was well within his jurisdiction to rescind or cancel the registration certificate. Section 22 does not limit the exercise of such power granted by it only to cases of fraud. For other sufficient reasons also an authority may cancel its earlier order passed in exercise of power granted by a West Bengal Act. Whether or not the reason or ground for exercising power under Sec. 22 of the 1899 Act is good or sustainable is entirely a different question. However, the power of the Registrar to rescind or cancel the certificate of registration issued earlier in exercise of power under the West Bengal Societies Registration Act, 1961, cannot be doubted. Mr. Bandopadhyay further submitted that the Registrar travelled beyond his jurisdiction in holding that if a new society (Pei May Chinese High School) is constituted with a separate entity at the same address as that of Pei May School which is a part of Chinese Tannery Owners' Association, then the Memorandum of Association of Chinese Tannery Owners' Association is to be amended to that effect and to be approved by the Registrar of societies. He contended that this issue was never urged before the Registrar and hence, the Registrar travelled beyond the scope of the proceedings before him.
This contention of learned Senior Counsel also cannot be accepted. Mr. Amitesh Banerjee, Learned Senior Counsel for the State handed up to me a copy of the written statement filed on behalf of the respondent no. 4 in the first writ petition before the Registrar. At paragraph 6 of the said written statement this issue was squarely raised. Hence, this issue was very much before the Registrar and he did not base his decision on any extraneous or irrelevant consideration.
(35) Accordingly, the contention of the petitioners that the impugned order suffers from the vice of excess of jurisdiction fails and is rejected. (36) Finally coming to the order impugned, I find that it is a speaking order. Cogent reasons have been given although in brief. It is definitely not an unreasoned order. The Registrar is not expected to right a lengthy judgment like a Civil Court. The Writ Court is generally concerned with whether there is infirmity in the decision making process and whether the decision is not arbitrary in the sense that it is not supported by any reason at all. The High Court in exercise of jurisdiction under Article 226 of the Constitution does not sit as an Appellate Court. Judicial review cannot be permitted to become an appeal in disguise.
In the present case I find nothing wrong with the decision making process. Principles of natural justice were observed to its fullest extent possible. The petitioner no. 2 in the first writ petition was given sufficient opportunity to participate in the proceedings before the Registrar. No procedural impropriety could be pointed out by the petitioners in the conduct of the proceeding before the Registrar. Further, as already indicated above, the view taken by the Registrar is an eminently plausible view supported by reasons which cannot be said to be perverse. I will be transgressing my jurisdiction if while exercising the power of judicial review I venture to evaluate the impugned order on merits. At the cost of repetition I reiterate that the Writ Court is not an appellate forum. So long as there is no glaring flaw in the decision making process and so long as the decision is supported by some reasons which are not illegal or perverse, the Writ Court should not intervene. I find no good reason which warrant interference with the order impugned. (37) In view of the aforesaid, these writ petitions fail and are dismissed without, however, any order as to costs.
(38) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)