Himachal Pradesh High Court
Himachal Pensioners Kalyan Sangh vs Principal Secretary (Coop.) And Others on 1 May, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 7722 of 2011
Decided on: May 1, 2017
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Himachal Pensioners Kalyan Sangh ................Petitioner
Versus
.
Principal Secretary (Coop.) and others ..........Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1 Yes.
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For the petitioner Mr. N.D. Sharma, Advocate.
For the respondents Mr. M.L. Chauhan, Additional Advocate
General, for the respondent-State.
Mr. H.K. Paul, Advocate, for respondent No.4.
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Sandeep Sharma, Judge (Oral):
By way of instant petition under Section 226 of the Constitution of India, petitioner i.e. Himachal Pensioners Kalyan Sangh (in short, 'petitioner-Sangh') has laid challenge to order dated 30.7.2011 passed by Principal Secretary (Coop.) to the Government of Himachal Pradesh, whereby appeal having been filed by respondent No.4, was accepted and petitioner-Sangh was directed to send amendment proposal to the Registrar Cooperative Societies, within one month from the date of passing of order.
2. Briefly stated, the facts, as emerge from record, are that respondent No.4 i.e. Pensioners Welfare Association, was registered under the Societies Registration Act, 1860 on 24.5.1989 by the Registrar of Societies, District Shimla. Subsequently, on 17.5.1999, Registrar-cum- Additional District Magistrate, Hamirpur registered another society in the name and style of Himachal Pensioners Kalyan Sangh i.e. petitioner- 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 03/05/2017 23:58:59 :::HCHP 2 Sangh. Respondent No.4, being aggrieved with the aforesaid registration, preferred petition before District Magistrate-cum-Registrar, Hamirpur, on the ground that there can not be resemblance in the names of two or more societies/associations functioning in the State, as such, registration .
certificate issued by Additional District Magistrate, Hamirpur, was invalid and void ab initio. However, the fact remains that the District Magistrate- cum-Registrar, vide order dated 14.2.2008 rejected the aforesaid petition.
3. Respondent No. 4, further being aggrieved with the rejection of their petition, preferred an appeal before the Registrar Cooperative Societies, who, vide order dated 30.12.2008, set aside and quashed order passed by District Magistrate, Hamirpur.
4. Perusal of order dated 30.12.2008, suggests that registration of petitioner-Sangh i.e. Himachal Pensioners Kalyan Sangh was held to be void ab initio, for the reason that it was registered in the year 1999 i.e. ten years after the registration of respondent No.4 i.e. 1989. Further perusal of aforesaid order passed by Registrar Cooperative Societies, suggests that petitioner-Sangh was directed to submit amendment, if any, in its bye-laws to change its name so that it may not be identical to the name of respondent No.4 society. Registrar Cooperative Societies further directed the petitioner-Sangh to apply to the District Magistrate- cum-Registrar, Hamirpur in due course of time, for its registration as District level society under the provisions of Societies Registration Act, 2006 because, admittedly, it was registered as District level association, whereas, respondent No. 4 was registered as State level association. ::: Downloaded on - 03/05/2017 23:58:59 :::HCHP 3 However, the fact remains that petitioner-Sangh being aggrieved with the order of Registrar Cooperative Societies, preferred an appeal before Secretary (Cooperation), who, vide order dated 28.8.2009, held registration of petitioner-Sangh as invalid, on the ground that it was void .
ab initio since action of Additional District Magistrate, in registering society was without authority and jurisdiction. Secretary (Cooperation) to the Government of Himachal Pradesh, while passing order dated 28.8.2009, further concluded that there is no need to decide the issue whether names petitioner-Sangh and respondent N.4 are identical or not, because Additional District Magistrate was not competent to register the petitioner-Sangh. It also appears from order dated 28.8.2009 passed by Secretary (Cooperation) that while declaring registration of petitioner- Sangh as invalid, it also held that addition of word, 'State', in the name of respondent No.4 Association was contrary to the provisions of Section 5(2)(b)(i) of the Act.
5. At this stage, it may be noticed that subsequent to passing of order dated 28.8.2009 by Secretary (Cooperation), respondent No.4 approached Registrar Cooperative Societies on 11.9.2009 that since it has deleted word, "State", from its name, in compliance of order of Secretary (Cooperation), necessary rectification in the record may be incorporated by deleting word, "State". While making aforesaid prayer, respondent No.4 also requested the Registrar Cooperative Societies not to allow the petitioner-Sangh to register its society in the name of Himachal Pensioners Kalyan Sangh, as its earlier registration in the same name has been declared void ab initio by the authority concerned. ::: Downloaded on - 03/05/2017 23:58:59 :::HCHP 4
6. It emerges from the record that Registrar Cooperative Societies issued certificate of registration vide registration No. 303/2009, registering therein petitioner-Sangh in the name of Himachal Pensioners Kalyan Sangh. Subsequent to aforesaid fresh registration having been .
made by the Registrar Cooperative Societies, respondent No.4 filed objection on 8.12.2009, laying therein challenge to the fresh registration of the petitioner-Sangh. Registrar disposed of the same on 8.7.2010 with the observations that Himachal Pensioners Kalyan Sangh has been registered by him in accordance with the provisions of Himachal Pradesh Societies Registration Act, 2006 and if the association was aggrieved by his action, it was at liberty to challenge the same as per Act. In the aforesaid background, respondent No.4 filed an appeal before Principal Secretary (Cooperation) to the Government of Himachal Pradesh, laying challenge to order dated 8.7.2010 passed by Registrar Cooperative Societies. Principal Secretary (Cooperation), vide order dated 30.7.2011, set aside order passed by Registrar Cooperative Societies and held that name of new society i.e. petitioner-Sangh resembles with the name of respondent No.4 society and as such it needs to be changed to ensure that it does not resemble or is identical to the name of respondent No.4. Principal Secretary (Cooperation) also directed petitioner-Sangh to submit an amendment proposal to the Registrar within one month from the date of passing of order, which was further directed to approve the society's proposal within one month from the date of submission of such proposal after ensuring that the proposal is in conformity with Section 5(2) of the Act. Hence, this petition by the petitioner-Sangh, praying therein for following main reliefs:
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"(i) That the impugned order Annexure P-9 dated 30.7.2011 passed by the Respondent No.1 against the petitioner may kindly be quashed and set-aside by issuing the writ of certiorari and further directions to the respondents no. 1 to 3 for functioning the petitioner society by issuance of writ of mandamus.
(ii) That the respondent no. 4 be restrained from using .
the name of the petitioner society in any manner.
(iii) That the whole record pertaining to the case of the petitioner may kindly be called for kind perusal of this Hon'ble Court."
7. Mr. N.D. Sharma, learned counsel representing the petitioner- Sangh, while inviting attention of this Court to order dated 30.7.2011, vehemently argued that same is not sustainable in the eyes of law as the same is not in accordance with provisions as contained in HP Societies Registration Act. Mr. Sharma, further contended that bare perusal of order dated 8.7.2010 passed by Registrar Cooperative Societies suggests that same is strictly in accordance with the Rules as such there was no scope for the Principal Secretary (Cooperation) to interfere in the matter, especially when petitioner-Sangh was registered afresh in terms of order passed by Secretary (Cooperation). While concluding his arguments, Mr. Sharma, further contended that once it stood proved on record that petitioner-Sangh was a District level association, by no stretch of imagination, it could be stated that there is resemblance in its name with that of respondent No.4, which is admittedly a State level association.
8. Mr. H.K. Paul, learned counsel representing respondent No.4 supported the order passed by the Principal Secretary (Cooperation). Mr. Paul further contended that bare perusal of impugned order passed by the respondent No.1 suggests that he has taken into consideration the Rules in vogue, while deciding controversy at hand and as such there is no illegality or infirmity in the impugned order passed by him, as such, ::: Downloaded on - 03/05/2017 23:58:59 :::HCHP 6 same deserves to be upheld. Mr. Paul specifically invited attention of this Court to Section 5 (2) of the HP Societies Registration Act, 2006, to suggest that there should not be any resemblance in the names of two societies registered by Registrar under this Act. Mr. Paul further .
contended that it is undisputed that respondent No. 4 was registered prior in time i.e. in 1989, whereas, petitioner-Sangh was registered in 1999, as such, action of Additional District Magistrate, in registering petitioner-Sangh in the name and style of Himachal Pensioners Kalyan Sangh, was rightly held to be invalid by the Registrar Cooperative Societies. Mr. Paul prayed that the petition be dismissed being devoid of merit.
9. I have heard the learned counsel representing the parties and also gone through the record of the case.
10. During the proceedings of the case, this Court, was made to travel through the impugned order passed by respondent No.1, as well as other orders passed by the authorities below, while deciding the controversy at hand, perusal whereof nowhere suggests that respondent No.1 committed any illegality or irregularity while passing order dated 30.7.2011, rather, this Court, after having carefully perused impugned order dated 30.7.2011, has no hesitation to conclude that there was no authority vested in Additional District Magistrate to register the petitioner-Sangh as Himachal Pensioners Kalyan Sangh, that too in 1999, because it stands duly proved on record that respondent No.4 was registered as Pensioners Welfare Association in the year 1989. At this stage, it may be profitable to reproduce sub-section (2) of Section 5 of the Societies Registration Act, 2006, as under:
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"Chapter-III Registration
4. .....
5(1) ...
(i) ..
(ii) ...
(iii) ...
.
(iv) ...
(2) No name shall be proposed in the memorandum of association --
(a) as is identical with or too nearly resembles the name by which a Society in existence has been previously registered anywhere in the State; or
(b) which has its component -
(i) such words as may suggest or may be calculated to suggest the patronage of the Government of India or the Government of a State;
or
(ii) such words of National, International or
universal importance or such other words as the State Government may, from time to time, by notification specify; or
(iii) such words as is, in the opinion of Registrar, likely to mislead the public."
11. Perusal of aforesaid provisions of law, clearly suggests that there can not be any resemblance in the names of two societies registered under the Societies Registration Act, 2006.
12. In the instant case, respondent No.2, while passing order dated 28.8.2009, had specifically held that registration of Himachal Pensioners Kalyan Sangh is invalid on the ground that it was void ab initio, since, Additional District Magistrate was not competent to register petitioner- Sangh in violation of Section 5(2) of the Act ibid.
13. It also emerges from the record that order dated 28.8.2009, passed by respondent No.2, whereby registration of petitioner-Sangh as Himachal Pensioners Kalyan Sangh, was held to be invalid, was never laid challenge to by the petitioner-Sangh, meaning thereby that the order passed by respondent No.2 on 28.8.2009, had attained finality. Similarly, this Court sees substantial force in the arguments of Mr. Paul, that there was no occasion for Registrar Cooperative Societies to register Himachal ::: Downloaded on - 03/05/2017 23:58:59 :::HCHP 8 Pensioners Kalyan Sangh after passing of order dated 28.8.2009, by the respondent No.2, rather, it was incumbent upon him to register petitioner-Sangh strictly in accordance with order dated 28.8.2009, whereby registration done by Additional District Magistrate was held to .
be illegal.
14. This Court finds that Registrar Societies, while considering fresh prayer of petitioner-Sangh, for registration as well as deciding objections dated 8.12.2009, exceeded his jurisdiction, while again registering petitioner-Sangh as Himachal Pensioners Kalyan Sangh, because, admittedly, at that time, controversy with regard to resemblance of names of petitioner-Sangh and respondent No.4 stood decided vide order dated 28.8.2009 by respondent No. 2, which had attained finality for all purposes.
15. Consequently, this Court, after having perused various orders passed by authorities concerned as well as provisions of sub-section (2) of Section 5 of the HP Societies Registration Act, 2006, sees no illegality or infirmity in order dated 30.7.2011 passed by respondent No.1, which appears to be in conformity with law, as such deserves to be upheld.
16. In view of the above, present petition is dismissed. Petitioner- Sangh is directed to approach authority concerned for changing its name, within two months, and authority concerned shall decide the same strictly in accordance with law.
Pending applications, if any, are also disposed of.
(Sandeep Sharma) Judge May 1, 2017 (vikrant) ::: Downloaded on - 03/05/2017 23:58:59 :::HCHP