Madras High Court
R.Nallathambi S/O Ramasamy vs The District Registrar ... on 1 April, 2011
Author: V.Dhanapalan
Bench: V.Dhanapalan
In the High Court of Judicature at Madras Dated: 01.04.2011 Coram: The Honourable Mr.Justice V.DHANAPALAN Writ Petition No.4805 of 2011 and M.P.Nos. 1 and 2 of 2011 R.Nallathambi S/o Ramasamy, Secretary, Kongunattu Vellalar Sangam, No.444, Karayanpudur, Mudalaipattu Post, Namakkal Taluk and District. ... Petitioner Vs 1. The District Registrar (Administration) and Registrar of Societies, Namakkal District, Namakkal. 2. M.Natarajan 3. G.Venkatachalam 4. K.Srinivasan. ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to call for the records in Na.Ka.No.4073/E/2010, dated 17.2.2011 on the file of the first Respondent, quash the same. For Petitioner .. Mr.R.Muthukumarasamy, S.C. for Mr.R.Karthikeyan. For Respondents .. Mr.S.Gopinathan, Addl.Govt. Pleader (W) for R1. Mr.M.S.Krishnan, S.C. for M/s Sarvabhavman Associates for R2 to R4. ***** O R D E R
Heard Mr.R.Muthukumarasamy, learned Senior Counsel appearing for M/s.R.Karthikeyan and R.Bharanidharan, learned counsel for the petitioner, Mr.M.S.Krishnan, learned Senior Counsel appearing for the Respondents 2, 3 and 4 and Mr.S.Gopinathan, learned Additional Government Pleader for the first Respondent.
2. One Mr.R.Nallathambi claiming to be the Secretary of Kongu Nattu Vellalar Sangam with Registration No.59/1990, has filed this writ petition questioning the jurisdiction and power of the first Respondent in passing the order dated 17.2.2011 in proceedings Na.Ka.No.4073/E/2010 and seeking to quash the same.
3. According to the petitioner, Kongunattu Vellalar Sangam (hereinafter referred to as the Sangam) was formed as early as in the year 1974 under the Societies Registration (Act 21 of 1860) and registered as No.33/1974 with an object to bring unity within the Kongunattu Vellalar Community residing in Namakkal and to establish educational institutions, hospitals and to work for the betterment of the community people. It was started with a strength of 21 members originally and thereafter slowly enrolled all the community people and had a membership strength of 140 persons in the year 1986 and they claimed that they had issued identity cards for nearly 3984 members, however, failed to properly submit Form VII for enrolling the said members.
3(a). While so, there was another society in Namakkal registered with the first Respondent in the name and style of 'Namakkal Public School Trust' and registered as No.70/1984. Both the above mentioned Kongunattu Vellalar Sangam and the Namakkal Public School Trust was amalgamated and registered under the Tamil Nadu Societies Registration Act, which was accepted by the first Respondent vide order dated 3.5.1990 in Order No.3742/A2/1990 as 'Kongunattu Vellalar Sangam' with the Registration No.59/1990 with 148 members. As per the Bye-laws of the Society, there were to be 31 Executive Committee Members consisting of a President, four Vice-Presidents, a Secretary, four Joint Secretaries, a Treasurer and other Executive Committee Members and they were to be elected in the Annual General Body Meeting called for the said purpose and the 31 Executive Committee Members would thereafter nominate the office bearers amongst themselves and the term of office for the office bearers and the Executive Committee was three years. Last such election of the Sangam was conducted in the year 2006-2007 wherein one P.Sengodan was elected as the President and the petitioner herein was elected as the Secretary and one K.P.R.Periasamy was elected as the Treasurer. It is the further case of the petitioner, that one Swamiyappan and P.S.K.Sengodan were elected as Vice-Presidents and P.K.Venkatachalam, K.Srinivasan, M.Natarajan and V.P.Veerappan were elected as Joint Secretaries. The President P.Sengodan had passed away during the month of October 2008 and one of the Vice-Presidents namely, Swamiyappan was nominated as the President of the Society by virtue of the Resolution passed in the Executive Committee Meeting.
3(b). During September 2010, the term of office of the elected body had come to an end and when the election process was about to be started, certain group of persons in the Executive Committee by their Resolution, dated 21.6.2010 had appointed one Natarajan as the President of the Society on the score that the above mentioned Swamiyappan had resigned and also appointed one Srinivasan as the Treasurer in the place of the erstwhile Treasurer K.P.R.Periyasamy. The said Resolution passed in the Executive Committee Meeting was submitted to the first Respondent on 28.6.2010, wherein the first Respondent, by an order dated 29.6.2010 refused to accept the said Resolution holding that the Executive Committee Members of a Society should be elected only in the General Body Meeting and not by way of Resolution passed by the Executive Committee as the same was contrary to Section 15(3) of the Tamil Nadu Societies Registration Act 1975 (hereinafter referred to as 'the Act'). However, the first Respondent, contrary to his own decision and proceedings dated 29.6.2010, passed another proceedings dated 6.7.2010 directing the Executive Committee to submit Form VII in respect of the Resolution dated 21.6.2010 and in the meanwhile, the first Respondent suspended the order dated 29.6.2010.
3(c). While so, the newly elected President had issued an advertisement in the newspaper on 30.7.2010 that the Society was going to conduct a Special General Body Meeting on 6.8.2010 and to the shock and surprise of the petitioner, when the Executive Committee met on 6.8.2010, the said Special General Body Meeting was itself converted into a Annual General Body Meeting, in which Respondents 2 to 4 were nominated as the President, Secretary and Treasurer respectively, apart from other Executive Committee Members also being nominated. In the said Meeting, there were oppositions from various members and ultimately, the Minutes Book was also stolen, for which the petitioner herein had lodged a criminal complaint with the Superintendent of Police, Namakkal and an FIR was registered in Crime No.1439/2010 dated 6.8.2010. In the meantime, Respondents 2 to 4 submitted a new Minutes Book containing Resolutions alleged to have been passed on 10.8.2010, stating that the old Minutes Book was submitted before the District Munsif Court, Namakkal in respect of a civil suit in O.S.No.350/2010 and also confirming the Resolutions passed on 6.8.2010 and nominating the Respondents 2 to 4 as the President, Secretary and Treasurer and other members as Executive Committee Members and submitted the same before the first Respondent, which has not been accepted by him and has not been taken on file as per the endorsement of the first Respondent.
3(d). It is the further case of the petitioner that the alleged General Body Meeting said to have been held on 6.8.2010 itself is not valid, as the same was not called for by issuing notice within the statutory period of 21 days and also without any agenda for election of the Executive Committee Members, besides the Special General Body Meeting as called for in the newspaper advertisement dated 30.7.2010 and it was converted into a General Body Meeting. The said Minutes recorded on 10.8.2010, which was submitted before the first Respondent in Form VII was also not taken on file for all the irregularities in conducting the meeting as mentioned above.
3(e). The petitioner claims that he was functioning as the Secretary of the Society as there was no proper elected body to the Society. However, the 3rd and 4th Respondents were trying to interfere with the rights of the petitioner from acting as the Secretary of the Society based upon the Resolution recorded in the new Minutes Book on 10.8.2010 which was submitted to the first Respondent on 30.8.2010.
3(f). That being the position, the petitioner had filed a suit in O.S.No.176 of 2010 on the file of the Principal District Judge, Namakkal, seeking for the relief of permanent injunction restraining the first Respondent from giving effect to the order made in Na.Ka.No.4073/E/dated 6.7.2010 and along with the suit he filed an application for injunction restraining the Respondents herein who were defendants in the suit, from interfering with the rights of the petitioner to act as the Secretary as interim measure and the Respondents had also filed their counter in the said case and the same is pending as on date.
3(g). In the meanwhile, the Respondents 2 to 4 had approached the first Respondent for acting as office bearers and also to operate bank accounts based on the resolution dated 6.8.2010. The first Respondent, also being a party in the civil suit in O.S.No.176 of 2010, without awaiting for the decision of the civil Court, had passed an order on 17.2.2011 permitting Respondents 2 to 4 to take over the affairs of the Society and also to operate the bank accounts of the Society. Thereafter, the Respondents 2 to 4 have filed a suit in O.S.No.90 of 2011 on the file of the Additional District Munsif Court, Namakkal, seeking for the relief of declaration to declare that they are the elected office bearers of the Society.
3(h). The petitioner filed this writ petition challenging the said impugned order passed by the first Respondent dated 17.2.2011, and to restrain the Respondents 2 to 4 to take over the affairs of the society and to operate the bank accounts on the ground that it is arbitrary illegal and opposed to the settled principles of law besides the first Respondent has exceeded his statutory power and has passed the impugned order without jurisdiction. The District Registrar, who is having control over the Society could only exercise powers under Section 34 and cannot grant directions or empower the office bearers to function in a particular manner when the very resolution appointing them as office bearers is being the subject matter of a civil suit before the competent civil court and that the District Registrar will not have power to go into the veracity or validity of the resolution passed by the Society.
4. Respondents 2 to 4 have filed their counter stating that the present writ petition is nothing but abuse of process of law as they have suppressed the material facts and put forward false allegations to snatch an interim order from this Court and the petitioner in an earlier occasion had filed a writ petition in W.P.No.17608 of 2010 on the very same allegations and this Court dismissed the said writ petition by an order dated 1.12.2010 and while dismissing the writ petition, this Court has observed that "the controversy raised in the present writ relates to internal affairs of the society and to resolve the same a General Body Meeting was convened in which the petitioner also participated and he was also removed by the society. The learned counsel appearing for the Respondents also fairly submitted that the petitioner has already filed a civil suit challenging his removal from the society". in spite of such an observation about the petitioner no longer being the Secretary, the petitioner has once again filed this writ petition describing himself as the Secretary of 'Kongu Nattu Vellalar Sangam' (hereinafter called the 'Society'). The petitioner has not thought it fit to implead the Society although the impugned order is issued to the second Respondent in his capacity as the President of the Society.
4(i) One V.Samiappan has been elected as the President on 28.10.2008 by the then Executive Committee when the previous President P.Sengodan had died. The said Samiyappan first expressed his desire to resign from the post of President in the month of December 2009 and he was persuaded to remain in the said post, as his tenure was due to end in the month of August 2010. However, once again on 10.1.2010, when the petitioner as the Secretary, had called for an emergent meeting of the Executive Committee to be held on 21.06.2010 to deliberate upon the resignation letter of Samiyappan, the members of the Executive Committee decided to relieve Samiyappan from the post of President as they felt that the said Samiyappan should not be retained in his post against his will. On the very same day, in keeping with bye-law No7, under the heading Executive Committee, the 3rd Respondent was selected as the Vice President and Ravi @ Venkatachalam was selected as the Vice President. The petitioner was also a party to the resolution but however, not only did he refuse to sign the minutes book but he had also taken away the resignation letter submitted by the said Samiyappan with ulterior motive. He first attempted to get this resolution declared invalid by approaching the 1st Respondent. The 1st Respondent, by his proceedings dated 29.6.2010 declared this resolution as invalid. Immediately on coming to know about this order, Respondents 2 to 4 brought to the notice of the 1st Respondent the fact that the Bye-laws of the society permitted selection of office bearers by the Executive Committee. Thereafter, the 1st Respondent, by his order dated 6.7.2010 reversed his earlier order and directed the society to submit Form VII Application. The said direction was also complied with by Respondents 2 to 4. It is this order which has been challenged by the petitioner in the suit O.S.No.176/2010 pending on the file of the Principal District Court, Namakkal.
4(ii). The second Respondent had filed a suit in O.S.No.350/2010 on the file of the Additional District Munsif Court, Namakkal against three of the Executive Committee Members and two others allowing allegiance to the petitioner for an injunction restraining them from interfering with his management of the 4th Respondent Society. In the said suit, an interlocutory application in I.A.No.639/2010 was filed seeking an ad interim injunction. The said application after contest was allowed by the District Munsif observing that the order of the 2nd Respondent dated 29.6.2010 had been reversed by him by his order dated 6.7.2010. The learned Judge taking into account the fact that the 2nd Respondent had established prima facie which were well known to the petitioner has been deliberately suppressed by him.
4(iii). The petitioner filed W.P.No.17608 of 2010 for a declaration that the notice dated 27.7.2010 published in 'Kalai Kathir' a Tamil Daily dated 30.7.2010 as illegal and non-est, totally suppressing these facts as well as the injunction granted in favour of the 2nd Respondent. The said writ petition was filed with a false allegation that the notice of the Extra General Body Meeting slated for 6th August 2010 had not been served on the members as per the Bye-laws of the society and only six days prior to the meeting, a publication of the meeting had been made in a Tamil Daily. The petitioner had deliberately suppressed the fact that a notice dated 11.7.2010 had been delivered in person to the members by the Treasurer of the society. Out of the total membership of 85, notices had been served on 60, information delivered to 4, 10 members had expired, 3 had gone abroad, 2 members refused to sign the copy of the notices and 2 others including the petitioner refused to receive the notice. Not stopping with this delivery in person, the 2nd Respondent had issued a reminder letter dated 27.7.2010 and followed it with the publication. The petitioner, to whom the notice had been taken, deliberately suppressed the said notice and filed the writ petition. This Court after a detailed enquiry, dismissed the writ petition by an order dated 1.12.2010. Immediately thereafter, the petitioner describing himself as the Secretary of the society filed the suit in O.S.No.176/2010 on the file of the Principal District Court, Namakkal stating that although the term of the office of the Executive Committee had expired on 16.9.2010, since a committee had not been formed in keeping with the Bye-laws of the society, he continued to administer. He further contended that on 1.12.2010, Respondents 2 to 4 along with 11 others had attempted to interfere in his administration. The suit was filed to declare the order of the 1st Respondent dated 6.7.2010 as null and void and for an injunction restraining the Respondents 2 to 4 and the other defendants from interfering with the administration of the society's properties by the petitioner. The above facts would clearly demonstrate the conduct and the utter lack of bonafide on the part of the petitioner. Having failed to obtain an interim order in the suit in O.S.No.176/2010, the petitioner has come forward with the present writ petition on totally untenable grounds and false allegations.
4(iv) The above writ petition is filed challenging the communication of the 1st Respondent dated 17.2.2011 which is nothing but an acknowledgement for the filing of Form VII as contemplated under Rule 17 of the Tamil Nadu Societies Registration Rules. The new Executive Committee elected by the General Body and the Executive Committee from amongst themselves have selected the office bearers. The Extraordinary General Body Meeting held on 6.8.2010 had elected the Executive Committee and in the next Annual General Meeting held on 14.9.2010, the resolutions passed in the Extraordinary General Body Meeting 6.8.2010 were ratified once again. The communication dated 17.2.2011 is simply an acknowledgement of filing and not an order as contended by the petitioner. According to the Respondents, the writ petition filed challenging this acknowledgement is not maintainable. Therefore, they prayed for dismissal of the writ petition on the ground that the facts averred by the petitioner are misleading and baseless.
5. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioner has strenuously contended that under sub-section (1) of Section 36 of the Societies Registration Act, the Registrar may, on his own motion or on the application of a majority of the members of the committee of registered society or on the application of not less than one third of the members of that registered society, or if so moved by the District Collector, hold or direct some person authorised so by Registrar by order in writing in this behalf to hold, an inquiry into the constitution, working and financial condition of that registered society.
5(a) He would further contend that the power of the Registrar was to enquire into the affairs of the Society only to hold a summary enquiry for its own satisfaction and not to adjudicate upon conflicting claims based upon question of benefits. The said power cannot be construed as the power of appeal under Section 36 of the Act. The Registrar has not been empowered to take upon the conflicted claims of the society based upon the question of fact. Therefore, the decision rendered by the Registrar in permitting the Responds 2 to 4 to take over the affairs of the society and also to operate the bank accounts of the society is without jurisdiction and authority of law when the conflicted issues pending before the civil Court. He would further contend that it is for the Registrar to go into the recording of the Form VII placed before him. On the contrary, he has exceeded his power by passing an order permitting the Respondents 2 to 4 to take over the affairs of the society and to operate the bank accounts. To substantiate his arguments the learned senior counsel appearing for the petitioner has relied on the following decisions:-
(i). A decision rendered by the Full Bench of this Court reported in 2005(2) CTC 161 in the case of C.M.S.Evangelical Suvi David Memorial Higher Secondary School vs. The District Registrar, Cheranmahadevi. In para 13 to 20 the Full Bench of this Court has held as follows:-
"13. In terms of sub-rule (1) of Rule 17, the registered society shall file with the Registrar within one month from the date of registration of the society, a copy of the register of members maintained by the society. In case any change among the members of the society or the committee in terms of sub-rule (2) of Rule 17, notice of such change shall be filed in Form No.VII within three months from the date of such change to the Registrar. The said notice of change shall be accompanied by the resolution of the meeting effecting such change.
14. Form VII contains the name of the society, date of registration, the year of registration and the details of change. Filing of the said Form is in order to ensure that such change in the committee or the members is entered in the register maintained in the office of the Registrar as maintenance of such record is compulsory.
15. for the purpose of such registration when Form No.VII is filed, the Registrar shall necessarily satisfy himself as to whether the particulars furnished in Form No.VII are true and correct.
16. Under sub-section(1) of Section 36, the Registrar may of his own motion or on the application of a majority of the members of the Committee of a registered society or on the application of not less than one third of the members of that registered society or if so moved by the District Collector hold or direct some person authorised by the Registrar by order in writing in this behalf to hold, an inquiry into the constitution, working and financial condition of that registered society. It is argued that in view of the word "into the constitution" employed in Section 36, the power of the Registrar to inquire into the affairs of the society shall include the power to inquire into the election of members. It is further argued that in terms of sub-section (9) of Section 36 of the Act, the power of the Registrar to enquire into the affairs of Section 36 of the Act, the power of the Registrar to enquire into the affairs of the society shall also include such direction to hold fresh election as well.
17. A conspicuous reading of the above mentioned provisions show that the Act is intended to regulate the affairs of the society in accordance with the provisions contained therein and the rules made thereunder and that the registration is made compulsory on certain contingency and for its enforcement the provisions confer only the administrative power of the Registrar to ensure that the registered society to function strictly in accordance with the provisions of the Act or the Rules made thereunder, more particularly for maintenance of accounts for audit purpose; framing of bye-laws in conformity with the object of the Society for which it is framed and registered; in respect of application of funds of the registered society, conduct of Annual General Meetings and extraordinary general meeting and amalgamation and division of registered societies. The Registrar has power to direct the registered society to furnish in writing such information or explanation in respect of any document which the registered society is required to file with him.
18. The power of Registrar to enquire into the affairs of the society is only to hold a summary inquiry for his own satisfaction. The said power cannot be construed as the power of appeal. Under Section 36, the Registrar has not been empowered to adjudicate upon the conflicting claims to represent the society based upon question of fact. A plain reading of Section 36 shows that the Registrar could look only the provisions of the Act and the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form No.VII in order to effect change in the register. The power of the Registrar to call for information and explanation under Section 34 does not contemplate any power to examine witnesses or to allow opportunity for cross examination of witnesses. The power in our view is incidental and it is only for the purpose of maintaining correct records. As the power to conduct inquiry is only limited in order to find out whether constitution of members are valid, the inquiry is limited only for the purpose of making entries in the register. However, the exercise of power must not be arbitrary as the orders passed or directions issued by the Registrar is amenable to challenge in the Writ Jurisdiction.
19. In this context it could also be kept in mind the intention of the Legislature not to confer a power of suppression of the Committee on the Registrar as by insertion of Tamil Nadu Act 16 of 1994, such power is vested only in the Government and even when the Registrar is satisfied after enquiry under Section 36 that the society which has contravened any of the provisions of the Act or the Rules made thereunder or the society is insolvent or must necessarily become so or that the business of any such registered society is conducted fraudulently or not in accordance with the bye-laws or the objects specified in the memorandum filed with the Registrar, he may only cancel the registration.
20. As the power of the Registrar to hold enquiry is only to arrive at a prima facie conclusion as to the correctness of the particulars given in Form VII, the provision of sub-section (9) of Section 36 should also be understood to mean that he could issue such directions to the registered society or any or the member of the society only with reference to the details furnished in Form VII. It must also be borne in mind that the enquiry under Section 36 is not only limited to the regular affairs of the society and such affairs not only include the constitution of a registered society but also to the working and financial condition, and hence the power of the Registrar to issue such direction under sub-section (9) of Section 36 of the Act, in regard to the constitution of the registered society must be understood in the context of Form VII. Section 14 obligates the registered society to maintain a register containing the names, address and occupations of its members. Section 15 further mandates such registered society shall file with the Registrar a copy of the register maintained by it under Section 14 and from time to time file with the Registrar notice of any change among the members of the committee. In the absence of failure to comply with Section 14, the Registrar could only resort to to the power under Section 37 to cancel the registration. Hence, the power under sub-section (9) of Section 36 cannot be stretched to a power on the Registrar to direct the registered society to hold fresh election. A direction to hold fresh election would amount to indirectly setting aside the earlier election and such power is not conferred on the Registrar under any of the provisions of the Act. So long as the election is not declared invalid in the manner known to law, no direction for fresh election could be ordered. Validity of the election could very well be decided only by the competent Civil Court as the parties are entitled to let in their evidence to sustain their respective claims. In the event the Registrar satisfies himself as to the particulars furnished in Form VII as correct, he should enter the names in the register maintained for that purpose. In the Form VII, he has to issue a direction relegating the parties to approach the Civil Court for appropriate orders and thereafter shall act as per the orders of the Civil Court. Accordingly, the issue is answered."
(ii). Yet another decision of a Division Bench of this Court reported in 2010 (3) CTC 390 in the case of C.Dharmalingam .vs. The District Registrar, a Division Bench of this Court held as follows:-
"14. In R.Muralidaran and others v. District Registrar, South Madras and another, 2008(1) MLJ 1308, which was referred to by K.Chandru, J in the order referred to supra, the question was whether the direction of the District Registrar directing to conduct a fresh election was correct. The Division Bench, in paragraphs 32, 33 and 36 held:
"32. From a bare reading of sub-section 34, it is clear that the only obligation cast upon the Registrar, upon receipt of any document or Form filed under the Act, is to call for any further information or explanation in respect of any matter, to which, such document relates to. Sub-section (3) makes it still more clear by prescribing that the Registrar may annex such information or explanation to the original document filed with him. Therefore, if Form No.VII is filed with the Registrar, as required by Section 15(1) of the Act read with Rule 17(2) of the Rules, all that the Registrar can do is only to call for further information or explanation under Section 34(1) and keep the information or explanation received by him as an annexure to the original document. This is nothing but a mere ministerial function and hence, it cannot be challenged by way of a Writ Petition under Article 226 of the Constitution of India.
33. In any event, the filing of Form No.VII is only a consequential action to an election purportedly conducted. The acceptance of such a Form by the Registrar would neither affix a seal of approval on the validity of the election nor would the rejection of Form No.VII by the Registrar, invalidate an election properly conducted. Therefore, a person, who is aggrieved by an election, should only go before a Civil Court challenging the election. A person aggrieved by an election cannot challenge the acceptance or rejection of Form No.VII by the Registrar as a short cut to invalidate an election....
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36. In fact, the Full Bench has gone to the extent of holding that the Registrar has no power to direct a Society to hold fresh election, even while invoking the jurisdiction under Section 36 of the Act. It is made clear by the Full Bench that an election can be set at naught only by the Civil Court in a suit and not even in an inquiry under Section 36. The necessary corollary of such a conclusion by the Full Bench is that what is not possible even in an inquiry under Section 36, cannot be made possible while receiving Form No.VII and looking into it under Section 34. Therefore the acceptance or rejection of Form No.VII and the action of the Registrar in calling for additional information or explanation under Section 34 is a mere ministerial act, not amenable to the writ jurisdiction of this Court. Therefore, the writ petition, out of which, the present Appeal arises, is itself not maintainable."
23. Next we come to the order of the learned Single Judge. In this case, the Registrar by order dated 30.10.2008, may be roughly translated, stated as follows:
The Form No.VII submitted by T.Immanuel would show that at the meeting held in Uma Catering Hall 150 members were elected unopposed. As per the Form No.VII submitted by S.Sadhasivam, the meeting was held at Sri Babu Shankar Thirumana Maaligai, where 149 members were elected. The Registrar has verified and held that these proceedings were not in accordance with the Circular No.7790/E1/2008, dated 23.10.2008 and that without taking into account the circular, even though the election was announced, on the same day two groups had conducted the election in two different places and two forms have been filed and in the Applications given by S.Gnanaprakasam and S.Ganimurugan, it is alleged that the members were not viven sufficient opportunity to contest the election. According to the Registrar, when the General Body Meeting was not held at the place where it was announced, a notice ought to have been given to all the members, after giving due opportunity and only the election, which is conducted after giving due opportunity and only the election, which is conducted after giving due opportunity to every one, would be a properly conducted election and therefore the proceedings were contrary to Section 26 of the Act. A Form-VII was given by C.Dharmalingam stating that on 27.09.2008 at the meeting held in Sermathai Vasan Ladies College, an election committee consisting of five persons were elected and after publication of the same in 'Malai Malar', the final list of contesting candidates was published on 15.10.2008 and since not more than 151 members contested, all were declared elected and Form No.VII was filed. On the requisition given by R.S.Johnson on 27.09.2008, an election committee was appointed which first announced that the election would be conducted at Madurai Nagamalai Nadar Mahajana Sangam S.Vellaisami College but, in view of Section 144, Cr.P.C. proceedings, it was decided to hold it at Sermathai Vasan Ladies College and at the election held on 29.10.2008, members were elected and Form-VII was filed. The Registrar then noted that for the same Sangam, four groups had conducted four different elections and the Registrar cannot decide which was properly conducted election. The Registrar then followed the Full Bench decision, wherein it was held that in the event the Registrar is not satisfied as to the particulars and he therefore cannot accept Form No.VII and he has to only issue a direction to the parties to approach the civil Court, the Registrar found himself unable to accept any of the Form No.VII, since he was not satisfied with the particulars. He also followed the order passed by the Division Bench in W.A.No.543/2008, wherein it was held that when the Form No.VII is alleged to be contrary to the bye-laws and the Form No.VII was accepted subject to the decision of the Court and when this Court had not given its decision in this regard, no one could take advantage of the Form No.VII which had been accepted by the District Registrar by letteer dated 25.04.2008. So the Registrar returned all the Form No.VII."
(iii). In the decision reported in 2007 (5) CTC page 421 in the case of Theni Melapettai Hindu Nadarkal Uravinmurai vs. The District Registrar (Societies) a Single Bench of this Court has held as follows:-
"19. It is seen from the language in which Section 15 of the Act and Rule 17 of the Rules is couched that there is a statutory obligation cast upon the society to file Form No.VII within the time limit prescribed thereto. The Act or Rules do not envisage any statutory duty or responsibility on the part of Registrar of Societies while accepting Form V or Form VII filed under the Act. Therefore, it appears that what the Registrar does while accepting the Forms, is only a ministerial act of receiving the form, scrutinizing the same to the extent necessary to verify the correctness of the particulars contained therein and registering the same. In other words, the Registrar does no more job than that of the Registrar of Companies accepting Form No.32 or Form No.34 under the Companies Act, 1956.
20. It is in view of such a position emerging out of the statutory provisions that the Full Bench of this Court laid in no uncertain terms in paragraph 20 that what is required of the Registrar is only to satisfy himself about the correctness of the particulars furnished in Form No.VII. The duty of the Registrar to satisfy himself about the particulars furnished in Form No.VII, is not larger than that of a ministerial act. The Registrar is not a competent to see if an election is validly conducted, if the office bearers were properly elected or if there were any illegalities in the manner in which the office bearer were elected. The verification of the particulars contained in Form No.VII to be done by the Registrar cannot be enlarged so as to enable him to test the validity of election itself."
(iv). Yet another decision of this Court reported in CDJLJ 2008 Madras 2634 in the case of The Chennai Kancheepuram Thiruvallur Districts Film Distributors Association .vs. The District Registrar, Central Madras, wherein it has been held as follows:-
"With regard to the second direction contained in the impugned order, directing the writ petitioner to reinstate the removed members, it is seen that the respondent individuals have already moved the Civil Court in C.S.Nos.330 and 331 of 2005, praying for a declaration declaring that the notifications, dated 19.02.2005 and 21.02.2005 issued by the writ petitioner are null and void and for permanent injunction, restraining the writ petitioner from interfering with the rights of the individuals as primary members of the writ petitioner association including the right to vote and contest in the writ petitioner association's election. It is also to be noted that pending the said Civil Suits, the individuals filed Application Nos.1778 and 1779 of 2005 and O.A.No.397 of 2005 in C.S.No.330 of 2005 for appointment of an Advocate Commissioner to conduct the election to the office of the writ petitioner association; to grant interim stay of the operation of the notification, dated 21.02.2005, issued by the writ petitioner recommending removal of the individuals from primary membership of the association and interim suspension of the individuals till the approval by the General Body of the petitioner association pending disposal of the suit and for interim injunction restraining the writ petitioner association from interfering with the rights of the individuals as primary members of the association, including the right of participating and contesting in the election of the writ petitioner association respectively. In addition, A.No.1780 of 2005 and O.A.No.398 of 2005 were also filed in C.S.No.331 of 2005, for similar reliefs and the said interim applications came to be dismissed. Therefore, when the matter is seized of by the Civil Court and when such position has been pleaded and agitated before the Registrar questioning the Bye-laws 23 and 54 of the petitioner association, the Registrar cannot go further to the extent of issuing such a direction in view of the pendency of the Civil Suits for the similar relief, the order passed by the Registrar vide the second direction cannot be sustained and, hence, the same is hereby interfered with and quashed. It is made clear that quashing of the order with regard to the second direction will not disentitle the respondent individuals from pursuing their remedy before the Civil Court. The said direction of the Registrar is set aside, for the only reason that he proceeded to pass the said direction, when the very same issue was already pending before the Civil Court. Therefore, it is open for the parties to pursue their remedy before the Civil Court, by putting forth all the contentions, which are raised before this Court."
6. Per contra, Mr.M.S.Krishnan, learned Senior Counsel appearing for the Respondents 2 to 4 would contend that the petitioner has already moved this Court by filing a writ petition wherein it was observed that the controversy raised in the present writ relates to internal affairs of the society and to resolve the same a General Body Meeting was convened in which the petitioner also participated and he was also removed by the society and the matter is before the competent civil court and he is also a party to the said proceedings of the civil court, it is not proper for the petitioner to approach this Court invoking the jurisdiction under Article 226 of the Constitution of India. He would further contend that as the petitioner has not chosen to challenge the election of the office bearers, it is not proper to him to challenge the order of the Registrar in recording Form VII.
7. The learned Additional Government Pleader appearing for the first Respondent has produced a copy of the written instructions wherein the first Respondent has denied all the averments and specifically stated that only taking into account the interest of the staff working in the society and in the interest of the students and administration of the school activities, the Registrar has taken such a decision and passed the impugned order dated 17.2.2011. It is further stated in the written instructions that a civil suit in O.S.No.176 of 2010 is pending and the petitioner as well as the Respondents were party to the said proceedings and the resolution of the Respondents dated 6.8.2010 has been challenged before the civil Court. Besides stating the factual position what are all pleaded by the parties concerned.
8. I have heard the submissions made by the learned senior counsel appearing on either side and also perused the material documents and the relevant provisions of law and the decisions cited by them.
9. A circumspection of the facts would reveal that Kongunattu Vellalar Sangam was formed in the year 1974 and thereafter the Namakkal Public School Trust was amalgamated with the petitioner Sangam and then it became Kongunattu Vellalar Sangam with Registration No.59/1990. It is not in dispute that for the Sangam as per the bye-laws of the society there were 31 Executive Members to be elected from among them the office bearers President, Vice-Presidents, Secretary, Joint Secretaries, Treasurer and other committee members. It is seen further during September 2010 the term of office bears elected body has come to an end and when the election processes are being started certain group of persons in the Executive Committee appointed one Natarajan as the President and one Samiyappan as Treasurer on resignation of one Srinivasan in the place of one KPR Ramasamy and the said resolution passed by the Executive Committee Meeting on 28.6.2010 was submitted to the first Respondent on 29.6.2010 and in that the first Respondent initially took a decision not to proceed with the resolution and insisted upon that under Section 15(3) of the Act, the election to be with the Executive Committee and they must be elected only by the General Body and not by the resolution of the Executive Committee. However, the said decision of the first Respondent has been reversed by passing an order on 6.7.2010 and the said order of the first Respondent was challenged in a civil suit in O.S.No.176 of 2010 wherein the petitioner is said to have filed an application for a permanent injunction restraining the defendants from interfering with the rights of the petitioner to act as the Secretary and also filed an application for interim injunction and the said suit is pending. By that time, the Respondents 2 to 4 passed a resolution dated 6.8.2010 and approached the first Respondent for acting as the office bearers and also to operate the bank accounts and the first Respondent has passed the impugned order on 17.2.2011 permitting the Respondents 2 to 4 to take over the affairs of the society and also to operate the bank accounts of the society. Thereafter, the Respondents 2 to 4 also filed a suit in O.S.No.90/2011 on the file of the Additional District Munsif Court Namakkal, seeking for the relief of declaration to declare that they are the office bearers of the society.
10. While that being so, the petitioner aggrieved by the action of the first Respondent in so far as permitting the Respondents 2 to 4 to take over the affairs of the society and to operate the bank accounts has filed this writ petition on the ground that it is without jurisdiction and authority of law.
11. To examine the above it is to be seen that the power of the Registrar under Section 36(1) of the Act is very specific that whenever there is an approach by any party for recording the Form No.VII, for registration, the Registrar necessarily satisfies himself as to whether the particulars furnished in Form No.VII are correct or not. Section 36(1) of the Act reads thus:-
"Under sub-section(1) of Section 36, the Registrar may of his own motion or on the application of a majority of the members of the Committee of a registered society or on the application of not less than one third of the members of that registered society or if so moved by the District Collector hold or direct some person authorised by the Registrar by order in writing in this behalf to hold, an inquiry into the constitution, working and financial condition of that registered society. It is argued that in view of the word "into the constitution" employed in Section 36, the power of the Registrar to inquire into the affairs of the society shall include the power to inquire into the election of members. It is further argued that in terms of sub-section (9) of Section 36 of the Act, the power of the Registrar to enquire into the affairs of Section 36 of the Act, the power of the Registrar to enquire into the affairs of the society shall also include such direction to hold fresh election as well."
12. From a reading of the above provision it is very clear that the Act is intended to regulate the affairs of the society in accordance with the provisions contained therein and the Registrar may compulsory on certain contingency and for its enforcement the provisions confer only the administrative power of the Registrar to ensure that the registered society to function strictly in accordance with the provisions of the Act or the Rules made thereunder. It is the settled legal position that the power of the Registrar to interfere with the affairs of the society is only to help the Society for its own satisfaction and that the said power cannot be construed as the power of appeal. The Registrar has not been empowered to take upon the conflicted claims of the society based upon the question of fact. A plain reading of Section 36 would reveal that the Registrar can only look into the provisions of the Act and the Rules framed thereunder. The materials to arrive at a conclusion either to believe or not to believe Form No.VII in order to effect change in the register. The power of Registrar to call for any explanation under Section 34 does not contemplate any power to examining the witness or to allow opportunity for cross-examining the witness. The power is an incidental and it is only for the purpose of maintaining the correct records. However, the exercise of power must not be arbitrary as the orders passed or directions issued by the Registrar are amenable to challenge in the Writ Jurisdiction.
13. In the instant case, a perusal of the impugned order would reveal that while taking up the matter for consideration for recording of Form No.VII, the Registrar cannot act beyond his limits of taking decision to allow the Respondents 2 to 4 to take over the affairs of the society and permitting them to operate the bank accounts when such of interest is pending before the competent civil Court and if that being the position, the power of the Registrar giving such empowerment to the Respondents to take over the affairs of the society and for operation of the bank accounts should be in accordance with the provisions and the Rules and it should not be allowed to go beyond the power conferred upon him while taking such a decision. With regard to the decision arrived at by the first Respondent, it has to be stated that as far as the funds operations are made for the internal affairs of the society and in which the Registrar has to look into the matter within his limits when the interest of the parties are taken cognizance by the competent civil Court, he being one of the parties to the civil suit, cannot go beyond his limit to look into the matter in the interest of both in permitting the Respondents 2 to 4 to take over the affairs of the society as well as the operation of the bank accounts. Therefore, I am of the considered view that except the recording of Form No.VII in order to effect change in the Register as and when it is presented before him, which is well within his power, the first Respondent should be within his limits while exercising his powers. Therefore, in my considered opinion, the decision arrived by the first Respondent in so far as his order empowering the Respondents 2 to 4 to take over the affairs of the society and permitting them to operate the bank accounts is not in accordance with the provisions of the Act and the power conferred upon him.
14. For the foregoing reasons and discussions made, the impugned proceedings of the first Respondent to the extent of empowering the Respondents 2 to 4 to take over the affairs of the society and permitting them to operate the bank accounts suffer from legal infirmities and cannot be sustained. The impugned order to that extent is quashed. However, the recording of Form No.VII is sustained. It is open to the parties to agitate all issues put forth by them before this Court before the competent civil Court and the parties are directed to contest the matter in the manner known to law.
15. At this point of time the learned counsel for the Respondents 2 to 4 would make a plea that in view of the interim order granted by this Court and pendency of the writ petition the Respondents are not in a position to disburse the salary for the staff members of the school run by the society and therefore, at least for the disbursement of the salary they may be permitted to draw the amount from the bank accounts. For this request, the learned counsel for the petitioner has not opposed.
16. Taking into consideration the interest and welfare of the students of the institution and the faculty members, this Court permits the Respondents 2 to 4 to draw the amount from the concerned bank accounts and disburse the salary to the concerned staff members as an interim measure, as the parties are moving the civil Court.
17. This writ petition is allowed to the extent indicated above. No costs. Consequently, connected M.Ps. are closed.
gr To The District Registrar (Administration) and Registrar of Societies, Namakkal District Namakkal