Madras High Court
The State Of Tamil Nadu vs Chikkaiah Naicker College Managing ...
Author: P.Velmurugan
Bench: K.K.Sasidharan, P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
14.3.2018
Delivered on
21.3.2018
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A.No.257 OF 2016
1.The State of Tamil Nadu,
rep. By it Secretary to Government,
Commercial Taxes and Registration Department,
Fort St.George,
Chennai 9
2.The Inspector General of Registration,
Santhome High Road,
Santhome, Chennai 28
3.The District Registrar,
Karungalpalayam,
Erode ... Appellants
versus
1.Chikkaiah Naicker College Managing Board,
rep. By its Committee Member,
J.Sardha @ Baby
2.Association of University Teachers
(Regd) Tamil Nadu,
rep. By its Unit at Chikkaiah Naicker College,
by it Secretary ... Respondents
Appeal filed against the order passed by this Court dated 11.12.2013 passed in W.P.No.31799 of 2012.
For appellant : Mr.S.R.Rajagopal,
Additional Advocate General
Assisted by Mr.V.Anandamoorthy, A.G.P.
For Respondents : Mr.T.R.Rajagopalan, Senior Counsel
for Mr.R.Bharanidharan, for R-1
Mr.V.P.Sengottuvel, for R-2
J U D G M E N T
P.VELMURUGAN, J.
The attempt made by a person in 2012 claiming herself to be the Committee Member of Chikkaiah Naicker College Managing Board, which was declared as a defunct society on 28 December 1994, resulting in passing an order by the Registrar of Societies to strike off the name of the society and publication of the same in the Government Gazette on 3 May 1995, for revival of the society and merge it with another society formed by the son of its erstwhile Secretary, thereby, to take over the management of a college, succeeded before the learned single Judge. The State in the appeal has now demonstrated the legal flaw in the order passed by the learned single Judge, overlooking the provisions of the Tamil Nadu Societies Registration Act. The order passed by the learned Single Judge if allowed to stand would have the effect of reviving the society declared as a defunct society way back on 3 May 1995 and transferring all its assets, including a college and 50 acres of prime land given by the Government to the society, to a society floated by the son of the alleged member of the defunct society, who earlier filed a Writ Petition challenging the action of Government in appointing a Special Officer to the college.
2. The respondent managed to over come the limitation of 45 days prescribed by the Tamil Nadu Societies Registration Act and Rules made thereunder for challenging an order declaring the society and striking off its name, by giving a representation in 2012, and challenging the order declining to grant the relief in a Writ Petition, to achieve the purpose which cannot otherwise be achieved, on account of the period of limitation.
3. The issue is covered by the judgment of the Supreme Court in State of Tripura vs. Arabinda Chakraborthy and others, 2014(5) Scale 335, wherein the Hon'ble Supreme Court held that the law does not permit extension of period of limitation by mere filing of a representation.
4 (a) The School Board by name Mahajana Schools Board was originally established by Thiru.Periyar E.V.Ramasamy Naicker, fondly called as Periyar. Philanthropists and educationalists residing in and around Erode actively associated with him and contributed for the establishment of Mahajana School Board at Erode. The Government initially allotted 12 acres of land for establishment of the College. Subsequently, at the instance of the Mahajana School Board, another extent of 38 acres of land was allotted by the then Madras Presidency at a nominal cost. Mahajana School Board after taking over 50 acres of land allotted by the then Government of Madras Presidency, established a college. The college was declared open on 10 August 1958 by the then Minister for Education and Finance, Government of Madras Presidency.
(b) The University Grants Commission issued certain directions for constituting Managing committee for the colleges affiliated to the Universities and governed by the UGC regulations. Mahajana Schools Board therefore established Chikkaih Naicker College Managing Board. The Chikkaiah Naicker College Managing Board was registered as a society under the provisions of the Tamil Nadu Societies Registration Act, viz. Act 76 of 1972.
(c) There were allegations of mismanagement of the educational society. The society was not functioning effectively and annual returns were not filed.
(d) The college was affiliated to Bharathiyar University.
(e) Bharathiyar University in the meantime appointed a five member Committee to inspect the college. The inspection team inspected the college on 19 July 1989 and 9 August 1989 and submitted its report to the University. The Committee informed the University that the college has not been functioning in accordance with the rules and regulations, and recommended for taking appropriate action.
(f) The District Registrar, Erode, initiated proceedings under Section 44(2) of the Tamil Nadu Societies Act for non filing of returns under Section 16(3) of the Act for a consecutive period of three financial years. Notices were issued on 30 June 1994. The Registrar published a notification in the Tamil Nadu Government Gazette dated 28 December 1994 under section 44(2) of the Tamil Nadu Societies Registration Act, declaring that after the expiry of three months from the date of publication, the name of the society would be struck off from the Register of Societies and it would be dissolved. There was no action taken by the members of the society to respond to the notices issued by the Registrar.
(g) The Registrar by order dated 3 May 1995, issued a final order under Section 44 of the Tamil Nadu Societies Registration Act declaring that the society by name Chikkiah Naicker College Managing Board is deemed to be dissolved from the date of publication of the declaration in the Tamil Nadu Government Gazette, viz., 3 May 1995.
(h) The near relatives of the Members of the Chikkiah Naicker College Managing Board constituted another Society by name Chikkiah Naicker Education Board and it was registered on 6 July 1998. The Board appears to have convened a meeting on 29 July 1998 and it was resolved to authorize the President to take steps to transfer the Chikkaiah Naicker College Managing Board with its assets to the newly constituted society. The Society, on 30 July 1998, passed a special resolution appointing Thiru.R.Aswath, who is stated to be the son of a member of the society, as Secretary. Thiru.R.Aswath, made an application on 5 August 1998, in terms of Section 7 of the Tamil Nadu Private Colleges Regulation Act, seeking transfer of the educational agency. The Government rejected the said application primarily on the ground that the college was not conducted in accordance with the Regulation Act.
(i) In the meantime, the Education Department issued a show cause notice on 18 September 1998 to the members as to why the administration of the college should not be taken over.
(j) The Government by order in G.O.Ms.489 Higher Education (D2) Department, dated 19 December 2000, appointed a Special Officer to the college in terms of Section 14-A of the Tamil Nadu Private College Regulation Act for the administration of the college for a period of one year or till the reconstitution of the management, in accordance with law. The college administration filed a suit in O.S.No.532 of 1998 before the Principal Sub Court, Erode, questioning the show cause notice dated 1 June 1998.
(k) The college administration filed another suit in O.S.No.533 of 1998 for a judgment and decree to permit Thiru.Aswath to act as the Secretary of the society and to perform all the lawful duties in the said capacity. Though interim orders were granted initially, all those orders were vacated subsequently. The plaintiffs filed CRP Nos.3197 and 3198 of 2000 before the High Court challenging the order vacating the interim orders. The revision petitions were dismissed as withdrawn by order dated 12 February 2001.
(l) The Chikkaiah Naicker Education Board, represented by Thiru.Aswath filed a Writ Petition before this Court in W.P.No.5272 of 2001 questioning the Government Order dated 19 December 2000 appointing the Special Officer to the College. The Writ Petition was disposed of by order dated 5 February 2002 with a direction to the Regional Joint Director of Collegiate Education, Coimbatore, to consider the application for transfer of the education agency in accordance with law.
(m) The Regional Joint Director of Collegiate Education considered the application pursuant to the order passed by the High Court and by order dated 14 March 2002, rejected the request made by Thiru.R.Aswath, for appointing him as the Secretary of the Board. The order passed by the Regional Joint Director of Collegiate Education was challenged in W.P.No.11019 of 2002. There was another Writ Petition filed by Thiru.T.A.Shanmuga Sundaram, claiming himself to be the Secretary of Chikkaiah Naicker Education Board in W.P.No.4399 of 2001, challenging the order passed by the Inspector General of Registration dated 7 December 2000, refusing to transfer the management of the College.
(n) The Government in the meantime took over the management of the college for a further period of two years w.e.f. 19 December 2012 as per G.O.Ms.336, Higher Education D-2 Department, dated 18 December 2002. The said order was challenged by Chikkiah Naicker Education Baord, represented by its Secretary R.Aswath, in W.P.No.448 of 2003. The Government in the meantime, extended the management of the college by another two years. The said order dated 30 November 2004 was questioned by Thiru.R.Aswath, claiming to be the Secretary, in W.P.No.37048 of 2004. The Writ Petitions were all dismissed by the learned Single Judge by way of a common order.
(o) The common order passed by the learned single Judge was challenged before the Division Bench in W.A.No.1670 to 1672 of 2005. The Division Bench in its judgment dated 12 January 2009 recorded the factual position that in view of the order passed by the Registrar of Societies, the Society is not in existence. The Division Bench observed that cancellation of the Society by the Registrar of Societies has become final. The Division Bench dismissed the appeals and confirmed the order passed by the Government appointing a Special Officer for the management of the college.
(p) Thiru.R.Awath, the self styled Secretary of Chikkiah Naicker Education Board in a dramatic manner, left the scene and in his place, Tmt.J.Saradha @ Baby, styling herself as a Committee Member, submitted a representation to the Registrar of Societies to exercise the right under Section 41 of the Societies Registration Act, 1975. She also filed a Writ Petition in W.P.No.4255 of 2012 to direct the Secretary to Government, Commercial Taxes and Registration Department to consider the representation in accordance with the provisions of the Tamil Nadu Societies Registration Act.
(q) The Government considered the representation pursuant to the order dated 30 March 2002 in W.P.No.4255 of 2012 and rejected the request of Tmt.J.Saradha @ Baby for revival of the society. The order passed by the Government dated 28 August 2012 was challenged before the writ court in W.P.No.31799 of 2012. The respondent herein prayed before the writ court to quash the order passed by the Government and thereafter to give exemption under Section 54 of the Act for exercise of its right under Section 39, to pass a resolution for the purpose of dissolving the society and merge it with another society. The learned Single Judge without considering the effect of the said order, in case the prayer is allowed, directed the appellants to consider the question of exempting the society from all or any of the provisions of section 54 of the Act. The order is under challenge at the instance of the State.
5. The learned Additional Advocate General contended that the society was declared as a defunct society and a declaration to that effect was published in the gazette on 3 May 1995. Section 44(5) of the Act gives liberty to the society or its members to approach the Inspector General of Registration or the Government, as the case may be, to set aside the order striking off the name of the society. According to the Additional Advocate General, no such application was made within the statutory period. The learned Additional Advocate General contended that the so called erstwhile member of society is not entitled to invoke Section 54 of the Act for exemption. It is the contention of the learned Additional Advocate General that only a live society can apply for exemption under Section 54 from the provisions of the Act. The learned Additional Advocate General took us through the earlier proceedings and contended that it is only to grab the 50 acres of land given by the Government and to run the college, the Writ Petition was filed for exemption. The learned Additional Advocate General contended that the earlier legal proceedings challenging the orders, taking over the management have become final. The society formed by Thiru.R.Aswath wanted to take over the assets. Since Thiru.R.Aswath and his society failed in its attempt, the respondent has come into the picture at his instance only for the purpose of reviving the society with the sole aim of transferring the assets to the new society. The learned Additional Advocate General finally contended that the order, in and by which name of the society was struck off, has become final, as there was no appeal within the period of limitation.
6. The learned Senior Counsel for the first respondent contended that the application filed by the respondent is maintainable under Section 44(6) of the Tamil Nadu Societies Registration Act. According to the learned counsel, the fact that litigations were filed earlier challenging the taking over of the management by the Government by Thiru.R.Aswath and formation of another society and its request to transfer the assets would not dis-entitle a member of the society for revival of the society which was declared as a defunct society.
7. The learned counsel for the second respondent contended that the order passed by the Registrar under Section 44(4) of the Act 27/1995 has become final. According to the learned counsel, the first respondent, with a view to over come the period of limitation, submitted a representation in 2012 by challenging the order of rejection, indirectly challenging the very order passed by the Registrar, long after the period of limitation. According to the learned counsel, the college is now managed by the Special Officer appointed by the Government. Thiru.Aswath, who floated another society has been making every attempt to grab the land owned by Chikkiah Naicker College Managing Board, which was donated by the Government. The learned counsel contended that the learned Single Judge without considering the background facts, allowed the Writ Petition and the order would enable the first respondent to revive the society, which has already been struck off, in spite of the expiry of the period of limitation.
8. The society by name Chikkiah Naicker College Management Board was registered as a society under the Societies Registration Act. The predecessor-in-interest of the society was given 50 acres of land by the then Tamil Nadu Government for establishment of the college. The college was initially established by late Thiru.Periyar E.V.Ramasamy Naicker, fondly called as Periyar and many other philanthropists and educationists, residing in and around Erode. The mismanagement of the society appears to be the reason for the non filing of returns consecutively for more than three years.
9. The Registrar of Societies, initiated action under Section 44 of the Tamil Nadu Societies Registration Act, treating Chikkiah Naicker College Managing Board as a defunct society. The Registrar issued notice to the Managing Board on multiple occasions. There was no response. The Registrar therefore issued a final notice dated 30 June 1994 indicating that action would be taken for non filing of returns under Section 16(3) of the Act for a consecutive period of three years. Still there was no response from the society. The Registrar therefore published a notification under Section 44(2) of the Act in the official gazette on 28 December 1994 to the effect that from the date of publication, the name of the society would be struck off from the Register of Societies and that the registered society would be dissolved. There was no action taken by the society even thereafter. The Registrar therefore passed an order striking off the name of the society. The Registrar published a notification in the Tamil Nadu Gazette on 3 May 1995 under Section 44(4) of the Tamil Nadu Societies Registrar Act, 1975, indicating that the name of the society is struck off from the Register of Societies and it is deemed to be dissolved from the date of publication in the gazette. The order passed under Section 44(4) of the Act has become final. There was no challenge to the declaration at any point of time.
10. The management of the college was taken over by the Government. The Writ Petitions challenging the action taken by the Government were all dismissed. The related appeals were also dismissed. The issue has therefore become final.
11. It is found that Tmt.J.Saradha @ Baby claiming herself to be a committee member of Chikkiah Naicker Education Board, filed a Writ Petition in W.P.No.31799 of 2012. The Writ Petition was not against the order declaring the society as defunct or challenging the striking off of the name of the society from the Register of Societies. It was a simple writ petition challenging the order passed by the Government rejecting the request for giving relaxation from the provisions of the Societies Registration Act.
12. The real motive in filing the Writ Petition is evident from the affidavit filed in support of the Writ Petition in W.P.No.31799 of 2012.
13. According to the writ petitioner in W.P.No.31799 of 2012, another society by name Chikkiah Naicker Education Board was constituted by Thiru.R.Aswath, son of Thiru.G.Rajasekar, who earlier claimed to be the secretary of Chikkiah Naicker College Managing Board. The society was registered under the Tamil Nadu Societies Registration Act. The members of Chikkiah Naicker Education Board under the leadership of Thiru.R.Aswath convened a special meeting on 29 July 1998, to transfer the educational agency of Chikkaiah Naicker College to the Chikkaiah Naicker Education Board. In the said meeting, the committee appointed Thiru.R.Aswath as the Secretary of the College. It is a matter of record that thereafter Thiru.R.Aswath filed series of Writ Petitions for taking over the management of the college and the Chikkiah Naicker College Managing Board. However, he was not successful.
14. The respondent seeks an order for exemption solely for the purpose of handing over the assets of Chikkiah Naicker College Management Board to the newly formed society by name Chikkiah Naicker Education Board.
15. The respondent in the affidavit filed in support of the Writ Petition, clearly admitted the factum of the society becoming defunct. Even after saying so, there was no challenge to the order declaring the society as defunct and striking its name from the Register of Societies.
16. The learned Senior counsel for the respondent contended that the respondent was right in filing Writ Petition for an order under Section 44(5)(b) of the Tamil Nadu Societies Registration Act, 1975. There is absolutely no merit in the said contention.
17. Section 44(5) of the Act reads thus :-
(5) (a) If a registered society or any member or creditor thereof feels aggrieved by the name of the registered society having been struck off the register, such registered society, member or creditor may, within such period as may be prescribed from the date of the publication in the Tamil Nadu Government Gazette of the notice of striking off the name of the registered society, appeal (i) where the name of the registered society is struck off by the Inspector - General of Registration, to the Government ; (ii) in any other case, to the Inspector-General of Registration. (b) The Government or the Inspector-General of Registration on being satisfied that the registered society was, at the time its name was struck off, carrying on business or in operation or otherwise that it is just and equitable that the name of the registered society be restored to the register, may order such restoration.
18. The question of restoration of the name of the society would arise only in case the application is filed within the statutory period from the date of publication in the Tamil Nadu Government Gazette, striking off the name of the society from the Register of Societies. The entire provisions have to be read together. It would not be possible to take sub clause (b) of Sub Section (5) out of context to make it appear as if the statute permits an order for restoration of the name of the society, even after the period of limitation. The question of passing orders for restoration of name would arise only in case a valid application was made before the Competent Authority within the period of limitation, prescribed under Section 44(5)(a) of the Act and rules made thereunder. Since no such application was made within the period of limitation, respondent has no justifiable claim for restoration of the registration of the society.
19. The learned single Judge without discussing the scope and ambit of Section 54 of the Act, directed the Government to consider the application. Section 54 empowers the Government by general or special order to exempt from all or any of the provisions of the Act or from any rule made thereunder to any society. The question of passing an order of exemption would arise only in case there is a society whose name is live on the file of the Registrar. There is no question of extending the provisions of exemption under Section 54 to a society which was declared as defunct society and whose name has already been struck off from the file. This material factor was omitted to be considered by the learned single Judge.
20 (a) The Registrar of Societies under the Tamil Nadu Societies Registration Act, 1975, after issuing series of notices to the society, passed an order under Section 44(2) of the Act 27/1975 on 28 December 1994. The notification under sub Section (2) of Section 44 was published in the Tamil Nadu Government Gazette on 28 December 1994. Thereafter, final order was passed under Section 44(4) of the Act on 3 May 1995, striking off the name of the society from the Register of Societies. The notification was published in the Tamil Nadu Gazette on 3 May 1995.
(b) The Tamil Nadu Societies Registration Rules, and more particularly, Rule 38 provides that appeals under sub Sections (1) and (2) of Section 45 shall be preferred within a period of two months from the date of the order against which the appeal is made. The order in the present case was issued on 3 May 1995. The appeal against the said order ought to have been filed on or before 3 July1995, under Section 45 of Act 27/1975.
(c) The core question is whether the first respondent should be permitted to ignore the period of limitation by entertaining the Writ Petition, challenging the order passed by the Government in a representation given for exemption from the purview of the Societies Registration Act, without there being a challenge to the order dated 3 May 1995 within the statutory period.
(d) The first respondent instead of challenging the order dated 28 December 1992 or 3 May 1995, adopted a novel device by giving a representation in 2012. The representation was rejected by order dated 28 August 2012. It was only the said order which was put in issue in W.P.No.31799 of 2012.
(e) It is trite that giving representation would not have the effect of extending the period of limitation. In case the remedy is barred under the provisions giving right to file appeal. The period of limitation cannot be extended by giving a representation.
(f) The Hon'ble Supreme Court in State of Tripura vs. Arabinda Chakraborthy and others, 2014(5) Scale 335, made it very clear that by giving representation for years together, the period of limitation would not commence from the date on which the last representation was decided.
The Supreme Court said :-
11. ... Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided.
14. ... It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place. Had there been any statute giving right of appeal to the respondent and if the respondent had filed such a statutory appeal, the period of limitation would have commenced from the date when the statutory appeal was decided.
(g) The learned Single Judge without considering the entire background facts, entertained the Writ Petition in W.P.No.31799 of 2012 and issued a direction to the appellants to consider the case for relaxation from the provisions of the Tamil Nadu Societies Registration Act. By giving such direction, the learned Single Judge virtually permitted the first respondent to over come the order passed by the Registrar of Societies on 28 December 1992 and 3 May 1995. There is no question of setting aside the order striking off the name of the society from the Register by filing a representation and that too after a period of 17 years. This fundamental aspect was not considered by the learned Single Judge. The order is therefore bad in law.
(h) The so called member of the Chikkiah Naicker College Managing Board by submitting a representation in 2012, made an attempt to revive a stale claim. The office bearer of the society, formed with the sole purpose of grabbing the assets of Chikkiah Naicker College Managing Board, is conducting a proxy litigation. According to the second respondent, Thiru.Aswath who is stated to be the office bearer of the newly formed society is behind the scene. The so called member of the Chikkiah Naicker College Managing Board who filed the Writ Petition in W.P.No.31799 of 2012 is actually dancing to the tunes of Mr.Aswath and the whole drama is enacted to take over the valuable assets of Chikkiah Naicker College Managing Board, established by the great leader, Thiru.Periyar E.V.Ramasamy Naicker.
21. The motive of the respondent in filing the Writ Petition is evident from the course of conduct adopted by her in connivance with Thiru.R.Aswath, who floated another society with the sole purpose of taking over the assets of Chikkiah Naicker College Management Board which includes 50 acres of land given by the Government and a full-fledged college presently managed by the Special Officer appointed by the Government. There is no question of by-passing the provisions of the Statute by creating artificial cause of action. The attempt made by Thiru.R.Aswath who is none other than the son of Thiru.G.Rajasekar, who claimed to be the former Secretary of the Society, to take over the management was turned down by the Courts earlier. It was only to give life to a dead litigation, Tmt.J.Saradha @ Baby, claiming herself to be a Committee Member, initiated fresh proceedings, originally by giving representation, and thereafter, by challenging the order passed by the Government, rejecting the request for revival of the society.
22. The revival of society is not for better management of the college and preservation of the assets of Chikkiah Naicker College Management Board. Even according to the deponent in W.P.No31799 of 2012, primary purpose is to transfer the educational agency of Chikkiah Naicker College to Chikkiah Naicker Educational Board, floated by Thiru.R.Aswath and others. The Court cannot be a party to the fraudulent action initiated by those who have vested interest to grab the property of the Government and an institution established by Late Thiru.Periyar E.V.Ramasamy Naicker.
23. The Government considered the entire background facts and rightly rejected the representation submitted by the respondent. The learned Single Judge without considering the factual situation and the statutory framework, allowed the Writ Petition filed by the respondent. The order is unsustainable in law.
24. The order dated 11 December 2013 is set aside. The Writ Petition in W.P.No.31799 of 2012 is dismissed.
25. In the upshot, we allow the intra court appeal filed by the State. No costs. Consequently, connected miscellaneous petitions are closed.
(K.K.SASIDHARAN, J.) (P.VELMURUGAN, J.) 21.3.2018 Index: Yes/no tar To
1.The Secretary to Government, Commercial Taxes and Registration Department, Fort St.George, Chennai 9
2.The Inspector General of Registration, Santhome High Road, Santhome, Chennai 28
3.The District Registrar, Karungalpalayam, Erode K.K.SASIDHARAN, J.
and P.VELMURUGAN, J.
(tar) P.D. Judgment in W.A.No.257 OF 2016 21.3.2018