Madras High Court
C.M.S. Evangelical Suvi David vs District Registrar on 31 October, 2008
Author: P.K. Misra
Bench: P.K. Misra, K. Kannan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/10/2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. KANNAN WRIT APPEAL (MD) No.515 OF 2008 M.P.No.1 of 2008 and REVIEW APPLICATION(MD) Nos.47 & 48 OF 2008 C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee, Karisal, Rep. by its Secretary S. Thomas Walker .. Appellant Vs. 1. District Registrar, Cheranmahadevi, Tirunelveli District. 2. District Educational Officer, Cheranmahadevi at Tirunelveli, Tirunelveli District. 3. T. Paulraj 4. S. David Stephen 5. M. John Deva Pitchai 6. G. Arul 7. M. Pitchai 8. K. Dasan 9. D. Edward .. Respondents Rev.Appln.47/2008 #C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee, Karisal, Rep. by its Secretary S. Thomas Walker .. Applicant Vs. $1. District Registrar, Cheranmahadevi, Tirunelveli District. 2. District Educational Officer, Cheranmahadevi at Tirunelveli, Tirunelveli District. 3. M. John Deva Pitchai 4. S. David Stephen 5. T. Paulraj 6. G. Arul 7. D. Edwardi 8. M. Pitcha 9. K. Dasan .. Respondents Rev.Appln.48/2008 #C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee, Karisal, Rep. by its Secretary S. Thomas Walker .. Applicant Vs. $1. District Educational Officer, Cheranmahadevi at Tirunelveli, Tirunelveli District. 2. S. David Stephen .. Respondents Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge in W.P.No.6430 of 2008 dated 24.7.2008 Review Applications have been filed under Order XLVII Rule 1 & 2 Read with 114 CPC., to review the order passed in W.A.Nos.496 & 497 of 2007 dated 28.11.2007. !For Appellant in ... Mr.C. Selvaraju, WA.No.515/2008 & Senior Counsel for Rev.Appln.47 & 48/2008 Mr.V.Panneerselvam ^Respondents 1 and 2 in ... Mr.Pala Ramasamy WA.No.515/08, Rev. Special Govt. Pleader Appln.Nos.47 & 48/2008 For Respondents 3 to 9 in... Mr. Issac Mohanlal WA.No.515/2008 & Respondents 3 to 9 in Rev.Appln.47 & 48/2008 - - - :COMMON JUDGMENT
P.K. MISRA, J The dispute in these cases relates to C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee, a society registered under the Tamil Nadu Societies Registration Act, 1975. Unfortunately (for the Society that is) there are two Groups claiming formation of separate committees. For convenience, the members of the Society now supporting the Appellant Committee are referred to as "the Appellant Group" and the Group opposed to them are referred to as "the Respondents Group" (except of course the official respondents, who shall be referred to by their official designation).
2. Apparently, there was no feud before 1999 and thereafter the Society seems to be mired in legal wranglings. Election for the Society was conducted for the period 2000 to 2003 on 22.12.1999 and Form VII was filed by the Appellant before the District Registrar on 23.12.1999, who took Form VII on file. Such action of the District Registrar, taking Form VII on file, was challenged by one Shri. David Stephen, belonging to the Respondents Group, by filing W.P.No.14402 of 2000. The said writ petition was dismissed by observing that the concerned person can file appeal before the appellate authority (Inspector General of Registration). However, no appeal was preferred, but a representation was made. The District Registrar (in charge) by considering the rival submissions, at that stage, observed that the list of members furnished by the Committee under the Presidentship of Shri.G. Jabamani, belonging to Appellant Group, shall be taken on file. It was observed by the District Registrar that 18 persons (belonging to the Respondents Group), who were claiming that they were newly inducted members of the Society, were not members and therefore the claim made by them was not acceptable. W.P.(MD)No.20121 of 2000 and W.P.(MD)No.1701 of 2001 were filed by the "Committee" represented by S. David Stephen and one individual J. David respectively belonging to the Respondents Group, which were dismissed by order dated 11.12.2001. Against the decision of the learned single Judge, the Respondents Group filed W.A.(MD)Nos.2969 of 2001 and 331 of 2002 respectively. While the matter stood thus, election for the further period 2003-2006 was conducted by the Office Bearers belonging to the Appellant Group, which was not specifically challenged in any Forum, and such Committee Members continued. In the meantime, a Division Bench, while taking up the two writ appeals, referred the matters to the Full Bench. Subsequently, the Full Bench after rendering its opinion, directed that the Appeals be posted before the Division Bench. Ultimately W.A.Nos.2969 of 2001 and 331 of 2002, filed against the order dated 11.12.2001 in W.P.Nos.20121 of 2000 and 1701 of 2001 were dismissed by the Division Bench as per order dated 14.9.2005, by observing as follows :-
"4. . . . these appeals are dismissed with liberty to file civil suits. We make it clear that the appellants can also challenge the order of the Registrar dated 13.11.2000 in the Civil Suit, subject to the objections that may be raised by the respondents."
2.1 On 3.12.2005, election was again held under the aegis of the Appellant Group for the period 2006-2009 and intimation in Form VII was submitted to the District Registrar on 12.12.2005. Thereafter, on the basis of the observation made, the 6th respondent, namely, V. Arul, belonging to the Respondents Group, filed O.S.No.20 of 2006 for himself and on behalf of other members of the School Committee challenging the order of the District Registrar dated 13.11.2000. While such suit was pending, fourth Respondent S. David Stephen, belonging to very same Group, filed Review Application No.12 of 2006 against the order in W.A.Nos.2969 of 2001 and 331 of 2002. Such Review Application was disposed on 21.2.2006, by deleting the last sentence of para 4 of the abovesaid order. It was further observed that all other points could be raised before the Civil Court. It was specifically observed :-
"10. . . . Therefore, the petitioner, either by filing a fresh suit or by impleading himself as one of the parties in the suit that was already filed by the President of the Association, could raise all the points."
2.2 Immediately, an intimation (Form VII) was furnished by the Respondents Group before the Registrar on 1.3.2006, intimating that a Committee was elected with effect from 25.2.2006, which was taken on file as per order dated 27.6.2006. Thereafter, by order dated 7.7.2006, the District Registrar refused to take Form VII submitted by the appellant on file on the ground that Form VII submitted by the Respondents Group had already been taken on file and the validity of the election can be challenged by approaching the Civil Court. Appellant Group filed W.P.No.5664 of 2006 challenging the order dated 27.6.2006, whereunder the District Registrar purported to take on file the Form VII submitted by the Respondents Group. The Appellant Group also filed W.P.No.5889 of 2006 against the order dated 7.7.2006, whereunder the District Registrar refused to take on file the Form VII submitted by the Appellant Group. Both the writ petitions were allowed on 28.7.2006 by the learned single by observing:-
"3. . . . However, the first respondent is directed to issue a notice of hearing to the petitioner (Mr.s. Thomas Walker) as well as the fourth respondent, conduct an enquiry in accordance with law in respect of the returns under Form VII submitted by the rival Groups and pass appropriate orders thereon within six weeks from the date of receipt of a copy of this order."
2.3 Subsequently, while reconsidering the matter as per the direction of the High Court, the District Registrar, by placing reliance upon the Full Bench decision reported in 2005(2) CTC 161, passed an order on 11.9.2006 directing both the parties to approach the civil court. Such order of the District Registrar was the subject matter of challenge in W.P.No.8717 of 2006 filed by the Appellant Group. The Respondents Group also filed W.P.No.10187 of 2006 challenging such order of the District Registrar dated 11.9.2006. On the basis of the order dated 11.9.2006, passed by the District Registrar, the District Elementary Officer cancelled the approval given to the Correspondent nominated by the Appellant Group. Such order of the District Elementary Officer was challenged by the Appellant Group by filing W.P.No.11148 of 2006. All the three writ petitions were dismissed by the learned single Judge by order dated 24.9.2007 by observing that the order of the District Registrar was in accordance with the directions issued by the Full Bench as followed by the Division Bench.
3. Against such common order of the learned single Judge, the Appellant committee represented through S. Thomas Walker, filed W.A.Nos.496 and 497 of 2007, whereas the Respondent Committee represented through S. David Stephen filed WA.No.636 of 2007. The Division Bench, purporting to follow the Full Bench decision, dismissed all the appeals by observing that the parties can approach the appropriate Civil Court for the redressal of their grievances and further directed the District Educational Officer to "... ensure not only payment of salary to the teaching staff as well as non-teaching staff but also oversee the Management and administration of the school by entrusting the same with the concerned Educational Officer working under his jurisdiction."
4. The two appellants in W.A.Nos.496 and 497 of 2007 have filed the present Review Application Nos.47 and 48 of 2008.
5. After thus taking stock of the factual matrix, time is now ripe to analyze the much misunderstood decision of the Full Bench, which was constituted to consider the correctness of the decision reported in 1994 WLR 779 (K. ARIVANANTHAPANDIAN AND ANOTHER v. NADAR MAHAJANA SANGAM AND THREE OTHERS). In the above reported Division Bench decision it was inter alia observed that the Registrar alone can register a society and while considering Form No.VII containing the change in the membership or in the Committee, it is necessary for the Registrar to be sure of the persons to be elected for the Committee and wherever Form No.VII is filed and its correctness is challenged by one or other party, the Registrar can enquire and find out as to whether the persons are elected to the Committee and, if on such enquiry, the Registrar comes to the conclusion that Form No.VII filed is not correct and nobody has been elected, it will be open to him to give a direction to hold a fresh election as envisaged in Section 36(9) of the Tamil Nadu Societies Registration Act, 1975. The Division Bench had further observed that such direction would be subject to the right of the parties to have the matter adjudicated by Court. While doubting the correctness of the said reported decision, the subsequent Division Bench in its order dated 19.8.2002 observed that such decision needs reconsideration "for the reason that Section 36 of the Tamil Nadu Societies Registration Act, 1975 ( hereinafter referred to as 'the Act' for short) does not envisage any appeal provision to meet the situation like this, where there is a dispute with regard to the election of the managing committee. We (sic - see?) some force in his contention as prima facie, we are unable to locate any power of adjudication of any dispute regarding validity of the election of the managing committee, and the appeal provision contained under Section 45 of the Act is attracted only when there is such power of enquiry under Section 36 of the Act. In view of this, we refer these matters to full Bench for adjudication. Pending further orders, the order of the learned single Judge dated 3.7.2002 keeping the order of the District Registrar(Administration), Madurai South, Madurai dated 24.6.2002 in abeyance, is suspended"
6. In the above context, the Full Bench, while deciding the matter, as per the decision reported in 2005(2) CTC 161, posed the following question :-
"Whether the power of the Registrar to enquire into the affairs of a registered society under Section 36 of the Act would include the power to enquire into the dispute relating to election to the members of the society?
7. While considering the requirement relating to filing of Form No.VII, it was observed :-
"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." (Emphasis added) It was further observed :-
"18. The power of the 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."
. . .
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 of 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, addresses 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 (sic - event?) 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 event if he does not satisfy as to the particulars and thereby does not accept 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."
(Emphasis added)
8. In the subsequent Division Bench decision reported in (2008)1 MLJ 1308 (R. MURALIDHARAN AND OTHERS v. DISTRICT REGISTRAR, SOUTH MADRAS AND ANOTHER), Form No.VII under Rule 17(2) of the Tamil Nadu Societies Registration Rules, 1978, was filed with the District Registrar of Societies in respect of Siddharth Heights Apartments Owners Association. However, objections were lodged with the District Registrar on the ground that election was not properly conducted in accordance with the bye-laws. The District Registrar passed an order rejecting Form No.VII and directing conduct of fresh election. The said decision of the District Registrar was challenged. Learned single Judge directed the parties to agitate the issue relating to election before the Civil Court and further directed both the parties not to operate the bank account till the matter is taken up by the Civil Court. Learned single Judge further expressed the view that the District Registrar having accepted Form No.VII on 28.1.2007, ought not to have passed the subsequent order dated 30.5.2007 rejecting Form No.VII and directing conduct of fresh election. The Adhoc Committee, which had filed the objection before the District Registrar, filed appeal against such latter observation of the learned single Judge. Before the writ petition was decided by the learned single Judge, the Adhoc Committee had issued notice for holding election and another election had been held on 15.7.2007 and subsequently a fresh Form No.VII had been filed with the District Registrar on 16.7.2007. The Division Bench had observed :-
"12. . . . it is seen that disputed questions of fact have arisen in the matter, which cannot really be decided in a writ petition under Article 226 of the Constitution of India."
8.1 After having so concluded, the Division Bench further observed that the Registrar, while accepting forms, performs only a ministerial act of receiving the form, scrutinising the same to the extent necessary to verify the correctness of the particulars contained therein and registering the same, and that a writ would not lie against any ministerial act performed by the Registrar of Societies under the provisions of the Tamil Nadu Societies Registration Act, including the acceptance or rejection of Form No.VII.
9. In a subsequent decision reported in 2008 Writ L.R.575 (TIRUNELVELI CMS-EVANGELICAL CHURCH, REP. BY ITS SECRETARY v. THE DISTRICT REGISTRAR, CHERANMAHADEVI AND ANOTHER), the Division Bench, following the observations made in R. Muralidharan's case, observed that the writ petition would not be maintainable.
9.1 In a subsequent unreported judgment dated 25.9.2008 in WA (MD)No.519 of 2008 (V. SOBANA KUMAR v. THE DISTRICT REGISTRAR, REGISTRAR OF SOCIETIES, MARTHANDAM & 11 OTHERS), the Registrar had accepted Form No.VII, subject to outcome of a pending suit. He, however, refused to accept Form No.VII submitted by the appellant, who had filed the writ petition challenging such order of the Registrar. The Division Bench by relying upon the earlier Division Bench reported in (2008) 1 MLJ 1308 (cited supra) upheld the decision of the learned single Judge and dismissed the appeal. While so deciding, the Division Bench further observed that there is no impediment for issuing a direction to take Form No.VII, which was subsequently filed, and keeping the same on record in relation to the concerned society.
10. In R. Muralidharan's case (supra) by purporting to follow the ratio of the Full Bench decision, it has been observed that the Registrar in such matters performs only a ministerial function and hence a writ petition would not be maintainable. Unfortunately, however, some of the important statutory provisions, including the statutory Rules, the significance thereof, were not brought to the notice of the Bench. Before, however, zeroing upon such specific provisions it is desirable to have a bird's eye view of relevant statutory provisions including the Rules.
11. As per Section 6 of the Act, for the purpose of registration of a society, a Memorandum specififying the name of the society, objects of the society and the names, addresses and occupations of the members of the committee of the society and the bye-laws of the society are required to be filed with the Registrar by a member of the committee of the society or by any person duly authorised by the committee in this behalf. As per Section 2(a), "the committee" means the governing body of a registered society to whom the management of its affairs is entrusted. Section 10(1) empowers the Registrar to issue a certificate of registration to the society. As per Section 10(2), the Registrar is required to enter such particulars as may be prescribed in the prescribed register. Section 14 contemplates that every registered society shall maintain a register containing the names of its members. Section 15(1) mandates that every registered society shall have a committee to manage its affairs. It further envisages that every registered society shall file with the Registrar a copy of the register maintained by it under sub-section (1) of Section 14 and from time to time, file with the Registrar notice of any change among the members of the committee. As per Section 15(2), copy of the register shall be filed at the time of registration or within such period as may be prescribed. It further envisages that the notice of any change among the members of the society or of the committee shall be filed within such period as prescribed. Section 15(3) contemplates that the members of the committee shall be appointed at a meeting of the society by a resolution of a majority of the members present and entitled to vote there at. Section 15(4) mandates that the term of office of the members of the committee shall not exceed three years from the date of their appointment.
The importance of the committee vis-a-vis the registered society is apparent from Section 18, which envisages that all property, movable and immovable, belonging to the registered society, if not vested in trustees, shall vest in the committee; and any such property may in any legal proceeding, be referred to as the property of the committee. Similarly Section 20 envisages that the committee or any officer of the registered society authorised in this behalf by its bye-laws may bring or defend or cause to be brought or defended any action or other legal proceeding touching or concerning any property, right or claim of the registered society and may sue or be sued in respect of any such property, right or claim.
Section 26 relates to holding of annual general meeting. As per Section 26(1), at least one general meeting is required to be held in every financial year. Section 28 contemplates regarding extraordinary general meeting. Required notice relating to annual general meeting or extraordinary general meeting is, as per Section 26(2), within such period as may be prescribed. It is axiomatic that the election to the committee can be in a general meeting as contemplated under Section 26 or in an extraordinary general meeting as contemplated in Section 28 depending upon the provisions contained in the bye- laws and the facts and circumstances happening in the particular society. At this stage, it is important to note that Section 26(4) specifically contemplates that "the Registrar may nominate an officer subordinate to him to be present at any such general meeting."
11.1 We have already noticed that election to the committee can be in a general meeting as contemplated under Section 26(1) or even in an extraordinary general meeting contemplated unde Section 28. The necessity of having extraordinary general meeting for holding an election to the committee can obviously arise only if the persons in charge of the society including the members of the committee do not arrange to hold election in a general meeting as contemplated under Section 26(1) and consequently there is requisition by interested and requisite members of the society requisitioning for holding of an extraordinary general meeting as contemplated under Section 28. Since holding of an election of the members to the committee can give rise to controversies (and hindsight clearly indicates that in many of the societies such elections have become hot-bed of subsequent controversies), it is reasonable to assume that the Legislature intended that the Registrar may nominate an officer subordinate to him to be present in any such general meeting including a general meeting where election is scheduled to take place with a view to ensure smooth holding of election and obviate any further controversy. Apart from the relevance and import of Section 26(4), relevance of Section 29 is also required to kept in view. As per Section 29(1), every registered society shall cause minutes of all proceedings of its general meetings, and of its committee to be entered in books kept for the purpose. As per Section 29(2), any such minute, if purporting to be signed by the Chairman of the meeting at which the proceedings were held or by the Chairman of the next succeeding meeting, shall be evidence of the proceedings. As per Section 29(3), the books containing the minutes are required to be kept in the registered office of the society and be open to the inspection of any member free of charge. Since as per Section 29(2) the minutes signed by the Chairman of the meeting shall be evidence of the proceedings, it is obvious that such minute will be relevant material required to be considered by the Registrar, while considering any aspect relating to constitution, working and financial condition of the registered society as envisaged under Section 36. This is more so in view of the specific provision contained in Section 35 that the books of every registered society shall be open to inspection by the Registrar or by any person authorised by him in this behalf. Section 37 empowers the Registrar to cancel the registration of a society, if upon enquiry held under Section 36 the Registrar is satisfied that the society has contravened any of the provisions of this Act or the Rules made thereunder or that the business of such society is conducted fraudulently or not in accordance with the bye-laws. It is thus apparent that the provisions contained in Sections 26(4) and 29 read with Section 35 are very significant statutory provisions in the context of authority, duty and responsibility of the Registrar qua the functioning of a registered society.
12. Since the bone of contention and the resultant bane of never ending litigations revolve round Sections 34 and 36, it would be appropriate to extract the relevant portions.
"34. Power of Registrar to call for information or explanation.-
(1) Where the Registrar, on perusal of any document which a registered society is required to file with him under the provisions of this Act, is of opinion that any information or explanation is necessary with respect to any matter to which such document purports to relate, he may, by order in writing, call on the registered society filing the document to furnish in writing such information or explanation within such time as he may specify in the order.
(2) On receipt by the registered society of an order under sub-section (1), it shall be the duty of all persons who are or have been its officers to furnish such information or explanation to the best of their power.
(3) On receipt of such information or explanation, the Registrar, may annex the same to the original document filed with him and any additional document so annexed by the Registrar shall be subject to the like provisions as to inspection and the taking of copies, as the original documents is subject."
36. Power of Registrar to inquire into the affairs of registered society.- (1) 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. (2) An application to the Registrar under sub-section (2) shall be supported by such evidence as the Registrar may require for the purpose of showing that the applicants have good reason for applying for an inquiry. . . .
(6) A person holding an inquiry under this section shall at all reasonable times have free access to all the books, accounts and documents of the registered society, and shall have power to call upon the registered society and the officers of society to produce such books, accounts and documents and furnish such statements and other information in relation to its business as he may direct.
(7) It shall be the duty of all persons who are or have been officers of the registered society to furnish the inquiring officer with all the books, accounts and documents in their custody or power relating to the registered society.
(8) A person holding an inquiry under this section may summon any person who, he has reason to believe, has knowledge of any of the affairs of the registered society and may examine such person on oath and may summon any person to produce any books, accounts or documents belonging to him or in his custody if the person holding the inquiry has reason to believe that such books, accounts or documents contain any entries relating to transaction of the registered society.
(9) The result of the inquiry shall be communicated to the registered society and to the applicants, if any, and if the Registrar is satisfied that the result of the inquiry does not warrant action under section 37, he may issue such direction to the registered society, or any member of the registered society, as the Registrar may deem fit."
12.1. We have already noticed that it is the duty of the society to have election for the committee at least once in every three years and similarly it is the duty of the society or the officer of the committee to file relevant information by filing appropriate Form before the Registrar. Non-compliance of the above requirements would also be punishable under Section 46(2). Similarly, under section 47 any person who wilfully makes or causes to be made any false entry in any register or other document, required to be maintained by the registered society, is punishable. Similarly under Section 48, the Committee of the registered society or an officer employed or a paid servant or any member of the society, who wilfully makes a false return or furnishes false information or willfuly withholds or fails to furnish any information lawfully required to be furnished, is punishable. It is obvious that since the Registrar is the authority envisaged under the Act to keep close track regarding the smooth working of the society, such prosecution can be launched by the Registrar. It is of course true that Section 52(2) specifically envisages that no prosecution shall be instituted without previous sanction of the Inspector General of Registration or any other officer of the Registration department not below the rank of Deputy Inspector General of Registration, as may be authorised by the Government. This, however, does not mean that the Inspector General of Registration or the Deputy Inspector General of Registration would be the prosecuting agency. It is axiomatic and quite well known that the sanctioning authority is different from the prosecuting authority. Keeping in view the overall scheme of the entire Act, it is self-evident that the Registrar is the prosecuting authority. Therefore, it goes without saying that the Registrar is required to find out regarding violation of any provision including holding of election for the committee, filing of different Forms in accordance with the provisions of the Act, Rules and the bye-laws.
12.2 As per section 56(1), the Government is authorised to make rules to carryout the purposes of the Act and as per Section 56(2), without prejudice to the generality of Section 56(1), the rules may provide for inter alia :
"(b) the matters in respect of which a society may or shall make bye-laws and the procedure to be followed in making, altering and abrogating bye-laws and the conditions to be satisfied prior to such making, alteration or abrogation;
(c) the forms to be used for the purposes of registration of societies and for filing documents required or authorised to be filed under this Act;
(h) the inspection of documents kept by the Registrar and the grant of copies thereof;
(i) the safe custody of books, papers and documents in the Registrar's office and the destruction of such of the books, papers and documents aforesaid as need no longer be kept."
13. Pursuant to the above Rule making power, the Tamil Nadu Societies Registration Rules, 1978, have been framed. The Rules, to the extent relevant, are as follows :-
"6. Subject-matter of bye-laws.- (1) the bye-laws shall contain provisions in respect of the following matters, namely:-
(a), (b), (c), (d), (e), (f), (g) -
omitted as not necessary
(h) the name of the person or officer, if any, authorised to sue or to be sued on behalf of the society;
(i) the name of the person or officer who is empowered to give directions in regard to the business of the society;
(j) enrolment of members :-
(i) qualifications for membership, classification, restrictions and conditions, if any, therefor; (ii) and (iii) - omitted
(k) removal of members the circumstances under which members could be removed from the rules and the procedure for such removal and appeal, if any, against such removal;
(m) the manner in which the society shall transact its business;
(n) the constitution of the Committee specified in section 15, the qualifications of the members of the Committee, their term of office and the procedure for their appointment and re-appointment.
(o) the preparation and filing with the concerned Registrar of such records, annual or other statements which are specified in the Act and the rules;
(v) (i) conduct of annual general meetings as laid down in section 26 and the procedure therefor;
(ii) conduct of extraordinary general meetings as laid down in section 28, and the procedure therefor and the number of members required for making a requisition in writing, calling for such a meeting;
(x) the exhibition of the register of members, the books containing the minutes and the books of account at the registered office of the society during business hours for inspection by its members free of charge."
16. Register of members.- The register of members specified in sub-section (1) of Section 14 shall be in Form No.VI.
17. Filing of copy of the register of members and notice of change of members or committee.- (1) A copy of the register of members maintained by the society under sub-section (1) of Section 14, if not filed at the time of registration of the society, shall be filed with the Registrar within one month from the date of registration of the society.
(2) The notice of any change among the members of the society or of the committee shall be filed in Form No.VII within three months from the date of such change. The notice of change among the members of the committee shall be accompanied by the resolution of the meeting, if any, effecting such change.
25. Notice of annual general meeting to members.- (1) Notice of general meeting of the society under sub-section (2) of Section 26 shall be given to the members at least twenty-one days before the day appointed for such meeting.
27. Extraordinary general meeting.- (1) An extraordinary general meeting of the society referred to in Section 28 shall be called within one month from the date of their requisition in writing from the number of members specified in the bye-laws of the society.
(2) The provision of rule 25 regarding notice of general meeting to the members shall apply to an extraordinary general meeting also.
49. Acknowledgment of registration and documents. - (1) Upon the registration of a society or on the filing of any document required to be filed under the Act or these rules, the Registrar shall grant to the society an acknowledgment.
(2) On every document filed under the Act or these rules, the Registrar shall endorse the following particulars, namely:-
(a) the number borne by the society on the register;
(b) the name of the society;
(c) the description of the document;
(d) the serial number of the document; and
(e) the date of filing.
The Registrar shall also affix his signature and the seal of his office to such document.
50. Filing of documents. - (1) The Registrar shall examine every list, statement, intimation, notice or other document received by him which is required by the Act or these rules to be registered, recorded, or filed and if he finds any such list, statement, intimation, notice or other document to be defective or incomplete in any of the particulars required by the Act or these rules, he shall return it to the party or society tendering it, for due rectification or completion and until, such list, statement, intimation, notice or other document is so rectified or completed he shall not register, record or file the same.
(2) A separate file shall be maintained in respect of each registered society, in which all documents relating thereto received from time to time, by the Registrar shall be filed in chronological order, that is, in the order of the dates on which they are received by the Registrar.
51. Preservation of records. - (1) The Registrar of Societies and the index relating to it shall be preserved permanently.
The party or society, on receipt of such list, statement, intimation, notice or other document, shall resubmit them after due rectification on completion within one month from the date of receipt of such list, statement, intimation, notice or other document."
14. From the above scheme of the Act and the Rules, it is thus apparent that the members of the committee are to be elected for the period envisaged under the bye-laws, not exceeding three years. Rule 16 envisages that the register of members as contemplated in Section 14(1) shall be in Form No.VI. Rule 17(1) contemplates that copy of the register of members maintained under Section 14(1) of the Act is required to be filed at the time of registration or within one month from the date of registration of the society. Rule 17(2) contemplates that notice of any change among the members of the society or of the committee " ... shall be filed in Form No.VII within three months from the date of such change. The notice of change among the members of the committee shall be accompanied by the resolution of the meeting, if any, effecting such change".
15. A perusal of the relevant Rules, more particularly 49, 50 and 51, indicate that a Registrar is required to perform certain duties which are statutorily prescribed and it cannot be said that he is expected to perform those duties only as a "ministerial act". More particularly, in Rule 50 it is specifically contemplated that the Registrar shall examine every list, statement, intimation, notice received by him, which is required by the Act. Thereafter, it is also specifically contemplated that if he finds any document, which obviously means all the documents contemplated such as list, statement, intimation, notice or other document to be defective or incomplete in any of the particulars required by the Act or the rules, he is obligated to return such document to the party or the society tendering for due rectification. It cannot therefore be said that the Registrar is merely expected to perform a "ministerial act". On the other hand, the Rules expect the Registrar to apply his mind and do the needful as contemplated. It is of course true, as observed by the Full Bench, while so examining the document, the Registrar does not have jurisdiction to decide finally the question of validity or otherwise of an election. But, as it was observed in the Full Bench decision, the Registrar is required to be satisfied even though prima facie regarding certain aspects. In fact it has been categorically stated in the Full Bench decision that if the Registrar acts arbitrarily, a writ petition would be maintainable. If the Registrar were to perform a mere ministerial act, there would be no occasion for him to even seek for additional information under the provisions of the statute and the rules.
16. The documents are expected to come from the authorised functionary of the society. When a document or notice comes apparently not from the functionary, whose name appears in the register maintained by the Registrar, it would be a case where the new documents or notices are coming from an unauthorised source. Supposing a total interloper or a stranger submits certain particulars in Form VII, can it be contemplated that the Registrar is simply to note the contents of such document in the register required to be maintained and file the same? In other words, the least, which is expected from the Registrar, is that he must try to find out that the documents, which have been received from the society, have emanated from the proper source or proper authority of the concerned society and not from a stranger. It is one thing to say that the Registrar does not have any jurisdiction to decide about the validity or otherwise of any election and another thing to say is that the Registrar is obliged to keep on record whatever documents are sent by whichever person merely because such document purports to be in Form VII. It is doubtful if the characterisation of role of the Registrar as "ministerial" could be appropriate, if his duties are seen in the context of the statutory rules, namely, Rules 49, 50 and 51 of the Tamil Nadu Societies Registration Rules, 1978.
17. Keeping in view the scheme of the Act, the overall supervisory power given to the Registrar as envisaged in several provisions is self-evident. In this context, keeping in view the importance of the committee in the matters relating to management of the society, it is but natural for the Registrar, who is the supervisory authority, to ensure smooth functioning of the registered society and its committee. The fact that the Registrar has been given the overall power of supervision relating to many aspects cannot be denied in view of the provisions contained in Section 36 relating to enquiry into the affairs of the society, Sections 37 and 38 relating to cancellation of the registration certificate, Section 40 relating to winding up of the registered society, Section 44 relating to removal of defunct registered societies and Sections 46 to 48 containing the penal provisions for violation of the statutory provisions.
18. In fact in the decision reported in 1994 WLR 779 (cited supra) the width and the amplitude of the power of the Registrar have been analysed. It is of course true that the observation made in the said decision relating to authority of the Registrar to go into the validity or otherwise of the election to the committee has been the subject matter of further discussion and possibly dissension in the subsequent Full Bench decision. However, a very careful analysis of the Full Bench decision makes it clear that the Full Bench has disapproved the observations made in 1994 WLR 779 (supra) only so so far as it relates to the power of the Registrar to go into the validity or otherwise of an election to the committee and the power of the Registrar to direct holding of a fresh election. However, apart from the said aspect, it can be well said that the analysis made in the earlier Division Bench decision still holds good in other aspects.
19. As is well known, many of the registered societies have been formed with a view to establish and manage educational institutions. The importance of the committee of a registered society, which is controlling the educational institution, has been well emphasised in a subsequent Division Bench decision reported in 1996-1- L.W.567 (M. AYYASAMY v. THE DISTRICT EDUCATIONAL OFFICER [ELEMENTARY EDUCATION] AND TWO OTHERS). In the said decision, Justice Raju, as His Lordship then was, speaking for the Division Bench, had observed :-
"10. We are of the view that the following principles and norms, if applied, in invoking the powers under Section 53-A(2) of the Act, may help to avoid arbitrariness:-
(1) Wherever there is a properly and validly elected Educational Agency or School Committee duly registered and certified by the Competent Authority under the provisions of the Tamil Nadu Societies Registration Act and the Rules made thereunder, the same should be allowed to function and not stultified.
(2) Whenever any competent court or Statutory Authority vested with such powers under the Act stays or suspends the operation of the proceedings recorded under the said Act by the grant of any order of stay or injunction, the fate of the Committee shall abide by such orders and the Authorities under the Act must give due weight and implement these orders:
(3) If there is no impediment in recognising or approving the elected Committee by any order as noticed in (2) above, the Authorities exercising jurisdiction under the Act shall be at liberty to recognise and approve the same so as to enable the Committee to function effectively, subject to the result of any Judgment/Decree of any Court or the Orders of any of the Statutory Authorities legally entitled to interfere with the said position.
(4) If the Authorities of the Educational Department themselves entertain any reasonable doubt about the legality and propriety of the claims made by anyone, it shall always be open to such authorities or members of the society to take action under Section 53-A(1) of the Act followed by separate action under Section 53-A(3) of the Act.
(5) If the Authorities of the Educational Department are satisfied with the claims made which are duly certified by the Competent Authority under the provisions of the Tamil Nadu Societies Registration Act, 1975, and the Rules made thereunder, such Authorities shall be at liberty to recognise or approve of the same under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and there is no necessity to have recourse to Section 53-
A(2) of the Act and such recognition or approval shall, of course, be subject to the orders of any Court interim or final, or Competent Statutory Authority in exercise of its powers under the statute."
19.1 The effect of this decision, which has held the field for more than a decade, has not even been noticed in any of the decisions.
20. From the above analysis, it is apparent that the Division Bench in R. Muralidharan's case and the subsequent decisions, which have merely followed the R. Muralidharan's case , have been rendered by ignoring many relevant and vital statutory provisions and statutory rules such as Sections 26(4), 29, 35, 37(c), 46 to 48 of the Act and Rules 49, 50 and 51 of the Rules. Therefore, it can be concluded that such decisions have been rendered per incuriam.
21. What is the effect of a decision, which is rendered per incuriam, has been analysed in several decisions of the Supreme Court as well as the Madras High Court.
In (2005) 1 SCC 608 (SUNITA DEVI v. STATE OF BIHAR AND ANOTHER), it was observed :-
"18. . . . The view regarding extension of time to "move" the higher court as culled out from the decision in K.L. Verma case shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody. In State v. Ratan Lal Arora it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. The present case stands on a par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of."
19. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in Young v. Bristol Aeroplane Co. Ltd. is avoided and ignored if it is rendered "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience."
22. In 1992-I-L.W.216 (PHILIP JEYASINGH v. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CHIDAMBARANAR REGION, TUTICORIN AND TWO OTHERS), the Full Bench, while laying down the general principles relating to precedent, certain exceptions were noted by referring to Halsbury's Laws of England to the following effect :-
"21. . . . There are, however, three, and only three, exceptions to this rule; thus (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to follow a decision of its own which, although not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; and (3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam."
(Emphasis added) 22.1 The observations in (1944) 2 All ER 293 (YOUNG v. BRISTOL AEROPLANE CO., LTD.), were also quoted in paragraph 22 of the judgment of the Full Bench, which is to the following effect:-
"22. . . . On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (i) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (ii) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (iii) The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."
(Emphasis added) 22.2 In para 24, the Full Bench observed :-
"24. Courts in this country have followed the same principles and recognised the same three exceptions to the rule of precedent. . . .
22.3 Ultimately in para 46, it was observed :-
"46. An analysis of the above rulings brings out the following principles:-
(1) A judgment is per incuriam if it is rendered in ignorance of a binding authority.
(2) A judgment is per incuriam if it is rendered in ignorance of a statute or a rule having the force of a statute.
(3) A judgment is not per incuriam because it is based on a wrong understanding of the law or a binding precedent.
(4) A judgment is not per incuriam because the reasoning is wrong in the opinion of the subsequent Bench."
23. Law is well settled that a decision is an authority for what it decides in the factual backdrop of a particular case and not what naturally flows from such decision. A decision is never considered as a legislative edict to be interpreted like a Euclid's Theorem. Moreover, a judgment is always required to be read as a whole and some expressions here and there are not supposed to be torn out of context for elucidating further principle as if laid down in the particular decision. A felicitous observation in a judgment does not necessarily become a precedent or source of law. As already analysed, the decision of the Full Bench was only in the context of the jurisdiction of the Registrar to consider the legality or otherwise of an election to the committee and it was observed, both in the context of Section 34 as well as Section 36, that the Registrar does not have the authority to decide about the validity of such election and the matter is to be decided in a civil court. However, a careful reading of the decision of the Full Bench, and particularly paragraphs which have been extracted and emphasised by us, clearly indicates that though the Registrar does not have power to finally decide about the validity or otherwise of an election, he has obvious authority and duty to consider the genuineness of the Form VII filed to consider whether Form VII has emanated from the appropriate authority so that for the purpose of maintaining the records both in the registered society concerned as well as in the office of the Registrar, no doubt remains in the mind of anybody. The duty of the Registrar is to see that the records are maintained properly. Though by acceptance of Form VII it cannot be said that validity of the election has been decided finally, it must be taken that for the purpose of maintaining records, both in the office of the registered society as well as in the office of the Registrar, the validity and the genuineness of Form VII has to be considered by the Registrar not necessarily through the process of a long drawn trial, but by application of mind to the materials available. Obviously the Registrar is not expected to act arbitrarily. Unfortunately, however, some observation made in the Full Bench decision taken out of the context has been made the basis of further observations in R. Muralidharan's case ignoring some of the vital and relevant provisions as contained in Sections 26(4), 29, 35, 37(c), 46 to 48 and Rules 49, 50 and 51. The purpose of maintaining the register, both in the registered society as well as in the office of the Registrar is to ensure smooth transition of power and authority from one committee to the succeeding committee. Since the primary duty to ensure such smooth transition is with the Registrar by having supervisory control, it is obvious that the Registrar would have all the incidental or ancillary power to ensure that the process of smooth transition from one committee to another is not de-railed. In such context, if it is held that the Registrar is not required to do anything except "filing whatever notice or documents sent to him", it would obviously give rise to more and more legalese and more complications. Acceptance of Form No.VII has the effect of ensuring the continuity in the management of the affairs of the society. Moreover, as observed in M. Ayyasamy's case (supra) , once Form VII is taken on record, it is required to be followed at least by educational authorities. It is no doubt true that acceptance of Form No.VII in one way or the other by the Registrar would not finally determine the status of the warring parties, which is to be decided in the Civil Court. But, it is another thing to say that the Registrar will have no role in the matter and he has to merely act as a rubber stamp. If such a view is to be accepted, chaotic situation would prevail in many of the societies. In the above context, the relevance and importance of Chapter V of the Act have been completely lost sight of, almost in all the decisions.
24. There are other enactments also such as the Indian Companies Act, 1956 and the Indian Partnership Act, 1932, which contain provision for submission of particulars in specified forms under the respective enactments to Registrars constituted under the Acts for affording proof of composition of the managing companies under control.
25. Section 303 of the Companies Act requires that every company shall keep at its Registered Office, a Register of its Directors, Managing Director, Manager and Secretary with specified particulars. Section 306 requires the Registrar to keep a separate Register entering the particulars received by him in respect of Companies which shall be open for inspection by any member of the public at any time. When noting that there can be several instances where two or more conflicting returns were filed with ROC, there are departmental instructions to the Registrars to cope up with them through circulars. To wit, a circular issued in letter No.20(66) CL-IV/60 dated 24.10.1961 directs that if there are two contending parties and filing conflicting returns, the Registrar should not make any entry on the Register in pursuance of Section 306 till the respective claims of the contestants are decided by a Court of competent jurisdiction. It further directs that if the documents are filed at the same or nearly the same time, the Registrar should merely place them on the company's file and advise the parties concerned to get the dispute settled in a Court of Law. If the Registrar has received a return well in time, the circular directs that he may proceed with the formality of recording, registering or filing the return and merely accept the other contradictory return filed with him later. Such a later return must not be recorded and the Registrar should enquire the circumstances in which the other return had been submitted and attach the explanation to the return in pursuance of Section 234(5) of the Act.
26. In Jullunder District Registered Factory Owners' Association v. Registrar of Companies, (1961) 31 Com Cases 673 (Punj), it was held that under Section 306 of the Companies Act, the Registrar had no power to pronounce as to the meetings having been validly held or a particular office-bearer having been duly elected. He could not even return the papers which were filed under Section 303. His decision and his endorsement in returning one of the returns was beyond his jurisdiction and he ought to received the returns again. Till the conflicting claims were decided by a Court, he might not make any entries in the Register. This decision could be seemed to have been rendered prior to the circular and the circular referred to above squarely addresses dilemma and gives direction as to how the Registrar would cope up in case of conflicting claims.
27. A still later Judgment of the Delhi High Court in S.K.Bhattacharya v. Union of India, (1998) 91 Com Cases 37, the Court dealt with the powers of the Registrar in the context of the Circular of the Government laying down the guidelines for the Registrar. The Court spelt out as follows:-
"Form No.32 is required to be submitted to the Registrar of Companies pursuant to the requirement of sub-section (2) of section 303 of the Companies Act, 1956, as regards particulars of appointment of directors and manager and changes amongst them. By circular dated October 24, 1961, the Ministry of Law, Justice and Company Affairs has laid down guidelines for registration or non- registration of Form 32 when returns are filed by rival parties. The Registrar of Companies is merely an administrative authority appointed under section 609 of the act. The office of the Registrar of Companies is merely an office of record. The Registrar is neither a Court, nor an adjudicating authority. Where circulars have been issued by the Ministry of law, Justice and Company Affairs laying down guidelines for registration or non-registration of Form No.32, it is necessary for the Registrar to follow the said instructions/guidelines contained in the circular. It is not correct to say that the Registrar is not bound by the guidelines or that the same are not mandatory".
28. Where the Act does not specify the guidelines, the departmental circulars have come to complement the statutory provisions to give definite guidelines.
29. The Societies Registration Act itself perhaps does not give specific guidelines, but there are individual indications with reference to specific provisions, which would show that the Registrar shall make due examination of the particulars submitted before him, before he takes the form on file.
30. The Partnership Act also contains provisions under Section 63, which sets out the procedure for registering a change in the Constitution of a registered firm of any incoming or continuing or outgoing partner or when a Registered Firm is dissolved. A situation arise under the Act, when a person, who was a retired partner, had submitted a Return to the Registrar declaring that a particular partner had died, that resulted in dissolution of the Firm. The Registrar accepted the Return and declared that the Firm had been dissolved. This decision was challenged in a Writ Petition under Article 226, which culminated in proceedings giving place to the decision in Durga Prosad Sarawagi and others v. Registrar of Firms reported in AIR 1966 CALCUTTA 473. The Court observed that while referring to the Returns submitted by a retired partner, if only the Registrar had applied his mind to his own Register, to his own entries, he would have seen that the person who is making the Application had already retired and the Registrar could not have accepted the Return submitted by the person to declare that the Firm had dissolved. The Writ Petition which had been originally dismissed was allowed by the Division Bench exercising its jurisdiction under Article 226, which makes clear that the Registrar's function is not merely ministerial in the sense that he has no more duty than to take whatever Return that was submitted to his file, but he should apply his mind and then take a particular form submitted on his file.
31. The Societies Registration Act, 1860, (which is supplanted by the Tamil Nadu Societies Registration Act, 1975) contains merely a provision through Section 4 for submission of annual list of managing body to be filed once in every year and the list should be filed with the Registrar of Joint- Stock Companies, of the names, addresses and occupation of the Government council, Directors, Committee or other governing Body then entrusted with the management of the affairs of the Society. Various States have made various amendments to the Central Enactment and some States like Tamil Nadu have brought about new legislation. The Uttar Pradesh amendment contains an interesting feature through Section 25, which sets up a prescribed author to whom a reference could be made by a Registrar or by atleast 1/4th members of the Society to hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearers of such Society. Dealing with the provisions of Section 25, the Allahabad Court in a case reported in AIR 1986 All. 236 held that if a dispute is raised before or is brought to the notice of the Registrar, he should refer the same for adjudication to the prescribed authority. The Tamil Nadu Act did not contain a similar provision, though Courts have invariably held that wherever there is a dispute regarding the election of office-bearers, the Registrar shall seek an adjudication by reference of the parties to Civil Court. We are not against the desirability of the Registrar in every case where there is bona-fide dispute to refer the parties to Civil Court for adjudication. This power ought not to be exercised in every single instance on an assumption that the Registrar has no power at all to even embark on a mistake of records, which were submitted to him. We cannot lose sight of the stark reality that inevitably the Civil Courts will take their own sweet time (because of the exploding dockets) and thereby the normal functioning of the society, which is mired in controversy, would come to a stand-still.
32. By characterizing the power of the Registrar is merely a ministerial function, the statutory functions and supervisory role, which the Registrar is bound to perform, would be diluted. If we must assume that Registrar will not even undertake any form of appraisal, it will mean that blind with realities that Civil Court litigation does not all end too soon and attack will arise with the maximum period of tenure of office bearers for 3 years provided under the Act which itself expire before conclusion of the proceedings before the Civil Court.
33. By branding the act of the Registrar, the way we do we cannot again shut the doors for a person who is genuinely aggrieved by the conduct of Registrar who forsakes his statutory duty by saying that remedy under Article 226 will not be available. We have already seen that even in the decision referred to above, the Calcutta Bench in AIR 1966 Calcutta 573 had entertained the writ petition to quash the order of the Registrar who admitted a wrong entry in the Register maintained under the Indian Partnership Act. The Supreme Court has held in State of Orissa vs.Gukula Nanda Jena reported in AIR 2003 SC 4207 that administrative order is accessible to the writ jurisdiction of the High Court (although no appeal may lie from such an order under Article 136), a writ in a matter like this should be maintainable, of course within the known parameters of such jurisdiction. In fact, precisely for the above reason, the Full Bench observed that if the Registrar acts arbitrarily, a writ petition would be maintainable. Unfortunately, however, by "construing some stray expressions" the subsequent Division Bench has completely diluted the Full Bench decision.
34. The Registrar, though takes on his file the Returns submitted to him under Form VII, shall do every act which is incidental to making the entries in Form VII relevant for the purposes for which it is intended.
34.1. The provisions under Section 36 of the Tamil Nadu Societies Registration Act relating to the power of the Registrar to enquire into the affairs of the Registered Society must be understood as taking in its fold every power that may be incidental to such power. In the Principles of Statutory Interpretation authored by Justice G.P.Singh, 10th Edition 2006 page 360, the author says " An express condition relating to the exercise of a statutory power may imply a prohibition. But this may not take away incidental powers flowing from the grant of power"
At page 361, the author says "The rule of implied prohibition does not negative the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective" citing "Govt. of Maharashtra vs. Deokar's Distillery, AIR 2003 SC 1216."
35. When it is said that a quasi-judicial authority, or for that matter any authority, has incidental or ancillary power to do a particular thing, it only means that such authority can come to any particular conclusion for performing his duty or exercising his power, but such conclusion would not be final.
36. In view of the foregoing analysis of all the relevant provisions and the ratio of the Full Bench decision, our conclusions are as follows :-
(i) The ratio of the Full Bench decision is only to the effect that the Registrar does not have any power either under Section 34 or 36 of the Tamil Nadu Societies Registration Act, 1975, to cancel the election to the committee, and, or to direct holding of fresh election.
(ii) If the Registrar of the Societies is not satisfied about the correctness of the Form VII, he need not take such Form VII on file, but he can direct the parties to approach the Civil Court to establish the validity of the election.
(iii) When any notice in Form VII is received by the Registrar, he is required to find out whether such notice has emanated from the appropriate authority. Obviously, he is also required to find out whether the persons claiming to be the members are in fact the members of the society. Since the register maintained in the office of the Registrar is supposed to contain the names of such members, it is not difficult for the Registrar to find out as to who are the members of the society.
(iv) Section 36 of the Act contemplates that, if necessary, the Registrar can call upon the persons likely to have information, knowledge in the matter for enquiry and for recording of statements on oath.
(v) Such conclusion by the Registrar is only for the purpose of maintenance of correct records, but any such order regarding membership of the society or election to the committee for the purpose of maintenance of records is obviously subject to the decision of the Civil Court, whether final or interlocutory order. However, till any contrary order is passed by the Civil Court, either finally or even by interlocutory order, the authorities under the Tamil Nadu Societies Registration Act, 1975 or under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, are not expected to go beyond such taking of Form VII. There is no concept of accepting as many as Form VII are possible as adoption of such a course would obviously result in chaotic conditions.
(vi) It is immaterial as to whether the order of the Registrar is considered as "administrative" or "ministerial". If, while passing the order, the Registrar acts arbitrarily, it would be open to the Writ court to consider the matter within the accepted parameters of writ jurisdiction and pass any appropriate order. Under what circumstances the High Court can interfere would obviously depend upon the facts and circumstances of each case.
37. In the light of the analysis made above, let us examine the facts of the present cases:
Form VII which had been filed by the applicant in the Review Applications and the appellant in W.A.No.515 of 2008 had been accepted at different stages. The claim made by the rival committee had been turned down by the Registrar mainly on the footing that the additional members of the society were in fact not the members of the society. In W.P.Nos.20121 of 2000 and 1701 of 2001, while considering the question as to whether new members have been inducted to the society and whether there was any election to the committee, wherein many such new members had become members of the committee, were valid or not, the learned single Judge had posed the following three questions for consideration :-
"i) Whether the impugned order of the first respondent in holding that the induction of the general council members on 18-3-1999 was invalid is correct and consequently, could it be said the petitioner's claim that new set of office bearers under the leadership of one Thiru G. Arul got validly elected in the meeting held on 24-11-1999.
ii) Whether the claim of the Group represented by the second respondent that extraordinary general body meeting held on2 2-12-1999 was validly held an that the set of office bearers got elected in that meeting as per the return in form No.7 submitted by them and accepted by the first respondent on 27-12-1999 merits acceptance.
iii)Whether the stand of the first respondent made in its counter affidavit filed in these two Writ Petitions vis-a-vis records produced before this Court reflects the correct state of affairs so as to hold that based on the averments contained in the counter affidavit of the first respondent, the claim of the petitioners could be considered?"
37.1 While considering the first question, the learned single Judge, after referring to the materials and circumstances appearing from record, inter alia observed as follows :-
"... Therefore, it was made out that the factum of holding of the said meeting and the resultant proceedings cannot be accepted for its face value."
It was further observed :-
"21. In the case on hand, it will have to be stated that when the petitioner would contend that the return in Form No.6 was presented at the belated point of time with necessary prayer for condonation of delay in presenting the document, it will have to be noted that there was no explanation at all as to why the return was not filed within the stipulated time limit. No special circumstances or reason was shown neither before the first respondent nor in this Writ Petition as to what was the justification for not filing the return in Form No.6 within the stipulated time. Therefore when the complaint of the second respondent right through was that records were being created at the instance of the Secretary of the petitioner in order to cover up his lapses in convening the meeting or holding of the election after the period of office bearers expired on 1-11-1999, the conduct of the petitioner in filing the returns both form No.6 as well as form No.7 at a belated point of time without any valid explanation for the inordinate delay assumes greater significance and viewed in that respect, the stand of the second respondent merits acceptance. In fact though it is claimed that the notice for holding fresh election on 24- 11-1999 was issued as early as on 29-10-1999, the return Form No.6 is stated to have been filed only on 26-11-1999 (i.e.) not even prior to the date of holding of election namely on 24-11-1999. The majority of the Group supporting the second respondent were all existing general council members and office bearers who were holding their office as such right from 1967, 1975, 1985 and 5-10-1996 whereas, except the Secretary of the petitioner, Thiru M.S. Densing Raja and D. Simon who got inducted as members into the general council on 5-10-1996, the rest of the persons were all persons who were stated to have been inducted as members of the general council only on 18-3-1999." (Emphasis added) 37.2 Ultimately, the question raised in Point No.1 was concluded by observing :-
"23. ... If that be so, when the evidence tendered on the side of the petitioners themselves disclose that the proceedings dated 18-3-1999 could not have taken place as claimed by them, the conclusion of the first respondent that 18 of the members got inducted as general council members on that date cannot be accepted. Consequently, the further finding of the first respondent that of the 15 general council members, only two persons have attended the meeting held on 24-11-1999, by virtue of clause 30(a) of the bye-laws of the society for want of the required attendance of general council members, any business including the election of 13 executive members stated to have been made on 24-11-1999 cannot be accepted as the said election was invalid merits acceptance.
24. Therefore on the first question it is held that the order of the first respondent is perfectly in order and the same does not call for interference."
(Emphasis added) 37.3 While considering Point No.2, it was observed :-
"27. In the case on hand, the requisition for extraordinary general meeting was dated 26-11-1999. In that notice, it is claimed that since election was not held after the expiry of the period of office bearers of the previous election dated 2-11-1996, an extraordinary general meeting is called for. Meaning thereby that fresh elections will have to be held for electing the new set of office bearers. The requisition notice also specified that the extraordinary general body meeting should be called on 22-12-1999. It is not in dispute that the said notice was received by the petitioner and the two other office bearers since the meeting was requisitioned by 11 out of 13 existing office bearers, it will have to be held that all the office bearers had the required notice of the meeting. The date and time have also been specified thereunder. Admittedly 11 out of the 13 members except general council members as on that date were present in the meeting held on 22-12-1999. The business transaction in the meeting was the election of new set of office bearers for the next three years. Immediately after the holding of the election on 22-12-1999, the return in Form No.7 was filed on behalf of the Group laid by the second respondent before the first respondent on 27-12-1999 and the same is also taken on record by the first respondent. Therefore, when the provision contained in Section 26, 28 and Rule 25 has been substantially complied with in respect of the extraordinary general body meeting convened pursuant to the requisition notice dated 26-11-1999 and since the required number of existing general council members were present in the said meeting and since the return has been filed within the stipulated period, it cannot be held that the action of the first respondent in approving of the same was not in accordance with law. Therefore on this question, it is held that the order of the first respondent was fully justified and the same cannot be interfered with."
37.4 While considering Point No.3, it was observed :-
"28. ... In any event, it will have to be held that such an attempt was purely an after thought, having regard to the categoric statement made by Thiru D. Paul Raj who was examined on the side of the petitioner as their witness before the first respondent on 16-10-2000. ..."
37.5 Ultimately, in view of the above answers to the three questions raised, the learned single Judge dismissed the writ petitions with costs of Rs.2,000/-.
37.6 Two writ appeals, namely, W.A.Nos.2969 of 2001 and 331 of 2002, filed against the above order, were dismissed vide order dated 14.9.2005 by observing that civil suit could be filed.
38. It appears that in accordance with the observation made by the Division Bench in the above order, the respondent Thiru. Arul for himself and other persons claiming to be the members of the C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee, filed O.S.No.20 of 2006 in the Court of the District Munsif, Cheranmahadevi, by inter alia alleging as follows :-
"6. The election dispute was referred to the High Court by way of filing a writ by the Society through its Secretary in W.P.No.20121/2000 and the High Court was pleased to dismiss the Writ Petition on 11.12.2001 upholding the election conducted by the 2nd defendant herein. Against that an appeal was filed in W.A.No.2969/2001 and when the Writ appeal was taken up the High Court passed an order on 8.10.2002 to the effect that the subject matter of the Writ Appeal was covered by a reference order dated 19.8.2002 to the Full Bench to decide whether the registrar under section 36 can decide the validity of the election. The Full Bench by its order dated 24.3.2005 held that the registrar has no power to decide the validity of the election and the validity of the election has to be decided by the Civil Court. Accordingly, the Writ Appeal was taken on 14.9.2005 for disposal in accordance with the judgment of the Full Bench. The Division Bench disposed off the appeal by dismissing the same giving liberty to the parties to file Civil Suit and liberty was given to challenge the order of the Registrar dated 13.11.2000. Hence, this suit is filed for a declaration that the election held on 24.11.99 is valid and for a declaration that the order of the 7th defendant dated 13.11.2000 is invalid and for consequential permanent injunction restraining the defendants 1 to 6 from acting as elected Executive committee members of the Society."
(Emphasis added)
39. Subsequently, however, the very same splinter Group purportedly represented through the Secretary S. David Stephen, filed Review Appln.No.12 of 2006, which was disposed of on 21.2.2006 by observing as follows :-
"9. Therefore, we make it clear, through this order, that the last sentences of the judgment under review i.e. " We make it clear that the appellants can also challenge the order of the Registrar dated 13.11.2000 in the Civil Suit, subject to the objections that may be raised by the respondents" stand deleted. All other points raised by the parties, with reference to the election could be raised before the civil Court for adjudication.
10. It is brought to the notice of this Court by the learned senior counsel for the respondents 2 and 3 that a suit has been filed by the President of the Society and the same is pending before the District Munsif, Cheranmahadevi. Therefore, the petitioner, either by filing a fresh suit or by impleading himself as one of the parties in the suit that was already filed by the President of the Association, could raise all the points."
39.1 Instead of pursuing the civil suit, the Respondent Group withdrew the same and approached the Registrar with a fresh Form VII.
40. While considering the question of acceptance of Form VII, the Registrar, by order dated 7.7.2006, has observed that since both the Groups have filed separate Form VII for the relevant period, they should go to Civil Court to establish their rights. These orders were the subject matter of challenge in W.P.(MD)Nos.5664 and 5889 of 2006. Learned single Judge, without going into the merits, set aside the order passed by the Registrar and directed the Registrar to consider the matter afresh after issuing notice of hearing to both the parties. Subsequently, the Registrar has passed an order dated 11.9.2006 by referring the Full Bench decision as follows :-
"... Hence as per the decision rendered by the High Court the Registrar of the Sangam has no power to decide about the validity of the Sangam. Hence it has been informed to both the parties with regard to the validity of the administrative committee as per Form VII they have to approach the appropriate Civil Court concerned with the validity of the selection of the administrative committee."
(As per the English translated copy furnished by the counsel for the applicant)
41. These orders were the subject matter of challenge before the learned single Judge in W.P.(MD) Nos.8717, 10187 and 11148 of 2006. All such writ petitions and the Appeals arising therefrom have been dismissed by misconstruing the decision of the Full Bench and by merely following the R.Muralidharan's case without making any attempt to find out whether the Registrar had failed to discharge his duty. Merely because the Registrar on a subsequent occasion directed both the parties to go to the Civil Court, it should not have been construed as taking away the effect of "taking on file Form VII". In view of the ratio of the decision in M. Ayyasamy's case (supra) the authorities under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, the educational authorities were not expected to go beyond such document. In view of the observations made by the High Court on different occasions, the opposite party in the Review Applications and the contesting respondent were required to establish their claim before the competent Civil Court rather than being encouraged to revive similar dispute over and again through different strategies. Once Form VII had been accepted, even though it did not have the effect of finally deciding about the validity or otherwise of any election, for the purpose of the Act, it should be considered as final, so that other consequences such as recognition of the educational authorities would follow, subject, of course to any decision of a competent Civil Court. In the absence of any decision of the Civil Court, final or even interlocutory, the educational authorities were not expected to go behind such Form VII, which had been taken on record.
42. In all these matters it appears that the basic question is whether the members represented through the contesting respondents had in fact become members of the society. In the elaborate decision of the learned single Judge in WP.Nos.20121 of 2000 and 1701 of 2001, which has practically become final, such contention has been discarded. The basic question is therefore not as to whether there has been subsequent election, but as to whether those persons had been in fact inducted as members of the society. In spite of an adverse order issued by the District Registrar and in spite of the clear order of the learned single Judge, no attempt has been made by those persons to get a declaration in the Civil Court that they are in fact the members of the society. The ratio of the Full Bench decision is only to the effect that the Registrar has no power to set aside the election and to direct for holding of a fresh election in respect of the members of the committee. Since the very status of such persons claiming to be the members of the Registered Society was doubted by the Registrar and the contentions raised by such persons in W.P.No.20121 of 2000 and 1701 of 2001 has been discarded in no uncertain terms, it was obviously inappropriate on the part of the Registrar to entertain any notice in Form VII issued by such persons. The question is not as to whether they had conducted a proper election or not. The basic question is whether they were members of the society. In the teeth of the categorical conclusion of the Registrar and the learned single Judge, until such persons established their status before the Civil Court, they did not have any locus standi to participate in any further election. This aspect has been lost sight of by all concerned. It is of course true that in the Review Application No.12 of 2006, it has been observed that the order of the Registrar relating to election dispute only is invalid because of the decision of the Full Bench. However, the categorical conclusion of the learned single Judge, that members have not been inducted, has not been reversed or modified even remotely in the Review Application.
43. Since the Division Bench as well as the learned single Judge were swayed away by the observations made in R. Muralidharan's case and since the basic principles as enunciated in the Full Bench decision and the impact of several provisions as now analysed by us have not been kept in view, such orders are required to be set aside and the matters are required to be reconsidered.
44. Before parting with the matter, we would like to observe that two warring fractions of the very same registered society should make all sincere efforts to bury the hatchet. The society came into existence with a laudable object of establishing and running educational institutions for the benefit of the society at large. If the "SOCIETY" itself is embroiled in unsavory litigations / disputes before different courts / authorities, a wrong signal is emitted to the society as a whole. The two warring fractions can try to resolve their disputes amicably through the intervention of any common well- wisher or even by approaching any functionary under the State Legal Services Authority or the Mediation Centres.
45. Last but not the least, we would like to make some suggestions to the State Government.
It is no doubt true that, as observed by the Full Bench, the District Registrar cannot decide an election dispute and such disputes are to be finally decided by the Civil Court. As is well known, the right to raise a dispute regarding any particular election may not flow from common law, but would depend upon the statutory provisions. It has been observed in several decisions of the Madras High Court that in the absence of statutory provision providing for an election dispute, the matter is required to be decided in a Civil Court. Judicial notice can be taken of the fact that in view of the uncontrollable docket explosion, the Civil Courts take their own time in deciding many important matters and as such, matters relating to disputes flowing from the Act can hardly, if ever, be decided within a reasonable time or even within three years period, which is the outer time limit for the committee. Once such disputes remain pending, further controversies are spawned giving rise to more complication and ultimate sufferer is the society. Keeping in view the above aspect, we think it is hightime for the State Government to consider seriously the possibility of amending the Societies Registration Act, to include a specific provision relating to resolution of any election dispute through the mechanism of any Election Tribunal with a provision for ultimate appeal or revision before a senior Judicial Officer in the rank of District Judge as has been done in Uttar Pradesh and may be in a few other States. This would ensure smoother functioning of the societies and less inflow of such internecine disputes to the ordinary Civil Courts.
In the result, W.A.No.515 of 2008 and the connected Review Application Nos.47 and 48 of 2008 are allowed, subject to the observations made, and all the matters are remitted back to the learned single Judge for fresh consideration. No costs. Consequently, the connected miscellaneous petition is closed.
dpk To
1. District Registrar, Cheranmahadevi, Tirunelveli District.
2. District Educational Officer, Cheranmahadevi at Tirunelveli, Tirunelveli District.
3. The Chief Secretary to the Government, Fort St.George, Chennai-600 009.
Interim order passed in the Review Application shall continue till the matter is decided by the learned Single Judge.