Kerala High Court
Pullichira Parish Protection Council vs The District Registrar (General) on 24 June, 2009
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934
WP(C).No. 26764 of 2009 (M)
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PETITIONER(S):
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PULLICHIRA PARISH PROTECTION COUNCIL,
Q-308/2009, PULLICHIRA, KOLLAM,
REPRESENTED BY ITS SECRETARY,
SRI.S.AUGUSTIN, ''EDEN'', PULLICHIRA P.O., KOLLAM.
BY ADVS. SRI.V.V.RAJA,
SRI.R.RANJITH.
RESPONDENT(S):
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1. THE DISTRICT REGISTRAR (GENERAL),
OFFICE OF THE DISTRICT REGISTRAR (GENERAL),
KOLLAM.
2. HANOCK PHILIP, KANAKAMVILLA,
PULLICHIRA P.O., KOLLAM.
R1 BY SR. GOVT. PLEADER MR.MUHAMMED SHAFI M.
R2 BY ADV. SRI.BECHU KURIAN THOMAS.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 26764 of 2009 (M)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE CERTIFICATE OF REGISTRATION SL. NO.Q 308/09
ISSUED IN FAVOUR OF THE PETITIONER SAMITHI, DATED 24/06/2009.
EXT.P2 COPY OF THE BY-LAW OF THE PETITIONER SAMITHI.
EXT.P3 COPY OF THE COMMUNICATION DATED 10/08/2009 ISSUED BY
1ST RESPONDENT TO THE PETITIONER.
EXT.P4 COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT
AND OTHERS BEFORE THE 1ST RESPONDENT, DATED 03/08/2009.
EXT.P5 COPY OF THE REPLAY DATED 26/08/2009 SUBMITTED BEFORE
THE 1ST RESPONDENT.
EXT.P6 COPY OF THE COMMUNICATION DATED 27/08/2009 ISSUED BY
THE 1ST RESPONDENT TO THE PETITIONER.
EXT.P7 COPY OF THE PETITION DATED 13/08/2009 FILED UNDER THE
PROVISIONS OF RIGHT TO INFORMATION ACT.
EXT.P8 COPY OF THE REPLAY DATED 09/09/2009 GIVEN BY THE PUBLIC
INFORMATION OFFICER IN RESPONSE TO EXT.P7.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
"CR"
C.K. ABDUL REHIM, J.
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W.P.(c) No. 26764 OF 2009
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DATED THIS THE 8th DAY OF FEBRUARY, 2013
J U D G M E N T
Petitioner is a Society registered under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955 (hereinafter referred to as 'the Act' for short). Exhibit P1 is the Registration Certificate and Ext.P2 is the Byelaws of the society, registered with the 1st respondent.
2. The 2nd respondent along with some other persons submitted a complaint before the 1st respondent seeking to cancel Ext.P1 registration on the premise that the registration granted is illegal and unsustainable. Allegations in Ext.P4 complaint was that, Ext.P1 registration was obtained by forging a memorandum (Byelaws) containing an objective to protect and maintain the assets of a christian congregation, namely 'Pullichira Edavaka'. It is stated that, "Pullichira Immaculate Conception Church" is a public religious trust coming within the Diocese concerned, W.P.(c) No.26764/2009 -2- and it is administered for benefit of the believers in accordance with the Constitution, Rules and Regulations of the Diocese. Nobody else other than the church has got any right to protect or administer the assets of the Church. Hence it is complained that the registration was obtained by total misrepresentation. In Ext.P4 it is specifically alleged that the registration was happened to be issued without verifying as to whether the petitioner society is one coming within the purview of the Act. Further complaint is that, on the basis of Ext.P1 registration, the petitioner society is unnecessarily interfering in administration of the church and they are utilising the registration for the purpose of instituting suits against the trustees of the church. It is also alleged that, on the basis of the registration the petitioner society and its members are unnecessarily interfering with religious rites and ceremonies conducted in the church.
3. On the basis of Ext.P4 complaint the 1st respondent issued a notice to the petitioner, who in turn had submitted Ext.P5 objections. The 1st respondent, after W.P.(c) No.26764/2009 -3- taking into consideration of the complaint and objections, issued Ext.P6. It is stated in Ext.P6 that a detailed enquiry was conducted in which it is revealed that the objectives mentioned in Byelaws of the petitioner society to the extent it aims at protection and maintenance of assets of the 'Pullichira Edavaka' is illegal for the reason that, for protection of such assets a legally authorised institution is available. Therefore the petitioner was directed to amend its Byelaws by deleting the 2nd objective mentioned therein, which relates to protection and maintenance of assets of the 'Pullichira Edavaka'. The petitioner society is challenging Ext.P6 in this writ petition.
4. Contentions of the petitioner is that, the 1st respondent has no jurisdiction or authority to direct a society to amend its Byelaws. It is further contended that, while granting registration the 1st respondent is not entitled to examine legality or maintainability of any provisions of the Byelaws or to examine the sustainability of any of the objectives of the society. Such an enquiry is not warranted W.P.(c) No.26764/2009 -4- for grant of registration, under the provisions of the Act, is the contention. Learned counsel for the petitioner had placed reliance on a decision of this court in Sulabha V. Suseela and another (2008 (4) KHC 997) wherein this court held that the Registrar while registering a document under the Registration Rules (Kerala) cannot decide sanctity or acceptability of the document or its legal validity or its purpose or usefulness. Any dispute that arise from the document can be settled only by competent civil court and the registering authority cannot decide rights and liabilities of the parties.
5. Learned counsel appearing for the 2nd respondent contended that, the petitioner society registered with an objective to maintain the assets of the church in question is not a society coming within the ambit and scope of the Act. According to him Ext.P2 Byelaws is legally unsustainable, because members of the society are not legally entitled to perform any functions in contemplation of such an objective. Therefore the District Registrar went highly erred W.P.(c) No.26764/2009 -5- in granting registration without examining legality and sustainability of the provisions incorporated as objectives of the society, is the contention. On that basis counsel for the 2nd respondent heavily contended that the impugned proceedings does not suffer from any infirmity.
6. While considering the issue, I am inclined to accept the contention of the petitioner that none of the provisions in the Act enables the 1st respondent to issue a direction to any society registered, to amend its Byelaws. The 1st respondent is totally lacking jurisdiction in that respect. Therefore, without any hesitation it can be held that Ext.P6 is an order passed without jurisdiction. But I am not inclined to uphold the contention that, the 1st respondent is bound to register any society without looking into legality or sustainability of the objective, for which the society is formed. The Registration Rules (Kerala) formulated under the Registration Act, 1908 has no application in this case. The Act herein is one conferring statutory powers on the 1st respondent for registration of W.P.(c) No.26764/2009 -6- certain societies mentioned therein. Therefore the ruling in Sulabha's case (cited supra) has no bearing on the subject or context.
7. The preamble of the Act itself provides that, it is intended for improving legal conditions of societies established for promotion of literature, science, fine arts or for diffusion of useful knowledge or for charitable purposes. Section 3 of the Act enables any seven or more persons associated for any literary, scientific or charitable purpose, or for any such purposes described in Section 32 of the Act, to form themselves into a society by subscribing their names to a Memorandum of Association, and by filing the same with the Registrar. It indicate that any seven or more persons subscribing their names to a Memorandum of Association with an intention and objective of associating themselves for activities enumerated in the said provision, alone is entitled to get registration. Section 32 specifies about the categories of societies which can be registered under the Act. It includes, Charitable societies, societies W.P.(c) No.26764/2009 -7- established for promotion of science, literature or fine arts, for diffusion of useful knowledge, for foundation or maintenance of libraries or reading rooms for general use among members or open to the public, for public museums and galleries of painting and other works of art, collections of natural history, mechanical and philosophical inventions, instruments or designs. Therefore it is evident that, only those societies with objectives coming within the purview of Section 32, read with Section 3 of the Act, alone can be registered under the Act. If a society which is formed with an objective other than one coming within the categories of societies mentioned in the Act, is happened to be registered by way of mistake or omission or on the basis of misrepresentation, can the Registrar cancel such registration, is the question mooted for decision. Learned counsel for the petitioner contended that as long as the statute does not confer any power on the 1st respondent to recall or to cancel the registration, such an exercise cannot done by the Registrar. But I am of the opinion that inspite of W.P.(c) No.26764/2009 -8- any specific power conferred under any of the provisions of the Act, the authority empowered to grant registration has got inherent power to cancel/recall the registration, if it is convinced that the registration happened to be issued on the basis of mistake or omission or on the basis misrepresentation. Therefore, the contention that the Registrar will become 'functus officio' once the registration is granted, cannot be accepted.
8. However, fact situation prevailing is that, the registration granted in this case was not cancelled or recalled. The direction issued in Ext.P6 cannot be sustained, for reasons already mentioned. So also it is pertinent to note that the Registrar cannot exercise any powers conferred under Rule 67 of the Registration Rules (Kerala), with respect to exercise of power vested under the Act. So Ext.P6 cannot be sustained. But I make it clear that the above observations will not stand in the way of the 1st respondent in examining as to whether the registration granted to the petitioner society was legal and proper, in W.P.(c) No.26764/2009 -9- view of the question as to whether the petitioner society is one coming within the purview of Sections 3 and 32 of the Act. While examining such a question, the Registrar should bear in mind the legal position as enumerated hereinabove. Needless to observe that any such exercise can be undertaken only with due opportunity afforded to the petitioner and the 2nd respondent.
In the result, the writ petition is allowed and Ext.P6 is hereby quashed, subject to liberty reserved to the 1st respondent to the extent as mentioned above.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge