Calcutta High Court
Liang Miao Sheng & Ors vs The State Of West Bengal & Ors on 19 September, 2018
Equivalent citations: AIRONLINE 2018 CAL 1607, (2019) 1 CAL HN 533
Author: I.P. Mukerji
Bench: Amrita Sinha, I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Justice Amrita Sinha
APO 542 of 2017
WP 518 OF 2016
LIANG MIAO SHENG & ORS.
VS.
THE STATE OF WEST BENGAL & ORS
For the Appellant :- Mr. Shyamal Sarkar, Sr. Adv.
Mr. Rajesh Gupta,
Mr. Meghajit Mukherjee,
Ms. S. Fasih
Mr. S. Mukherjee
For the Respondent :- Mr. Siddhartha Mitra, Sr. Adv
Mr. Sunil Kumar Chakraborty,
Mr. H. Bhattacharya,
Mr. Sudip Deb,
Mr. S. Bhattacharya,
Mr. Sumitava Chakraborty
For the State :- Mr. Amitesh Banerjee,
Sr. Standing Counsel
Mr. Billavadal Bhattacharya.
Judgement On :- 19.09.2018
I.P. MUKERJI, J.:-
There is a sizable Chinese community in Kolkata. Almost all its members are
permanently settled here. Their ancestors migrated to this city a long time
ago. There is a specific area in the city where there is concentration of this
community. It is called China town. You will find Chinese culture, tradition,
food, religion and way of life in every corner of it. It is no wonder that these
Chinese people wanted to educate their children in the Chinese tradition. In
1929, they started their own school Pei May Chinese High School in a small
hut.
We do not know when the association was born but the Chinese Tannery
Owners' Association was founded by these Chinese people. This association,
on 18th January, 1946 purchased a parcel of land of more than 3 and 1/2
bighas in Tangra, in China Town. It is numbered as premises No. P1 & 2
Iswar Mandal Lane, Kolkata-46. In 1950, the school shifted to this plot of
land. This association was registered much later on 18th May, 1967 under
the West Bengal Societies Registration Act, 1961. The registered address was
6 New Tangra Road, Kolkata - 700046. This association has a memorandum.
It mentions this school as its sister concern, with an independent managing
committee.
On 19th February, 2010 Pei May Chinese High School was registered as a
society under the said Act. On 18th July, 2010 an election of the managing
committee of the school was held. Liu Kao Chao was elected as the
President. Li Shih Lin was elected as the Secretary of the School/society.
Chen Khoi Kui also contested for the post of secretary but was unsuccessful.
On 17th August, 2010, Chen Khoi Kui describing himself as the elected
secretary of Pei May High School lodged a complaint with the Registrar of
firms, Society and non-trading corporation that the new association had
been registered fraudulently by some members of the Chinese Tannery
Owners' Association.
On 17th August, 2010, complaints were made by three persons Chung Chih
Ping, Liwan Tho and Li Chih with the Registrar, that their names had been
included in the memorandum of the association and its regulations without
their knowledge and consent.
The ground made by the school represented by its secretary Li Shih Tin in a
writ application filed in this Court (WP NO.4 of 2011) was that the Registrar,
on receiving the complaints ought to have cancelled the certificate of
registration of the association and failed to discharge his duty in not doing
so. On 10th January, 2011 this writ application was disposed of by this
Court simply by asking the respondent authority to give its decision in the
matter. On 25th January, 2012 the Registrar made a decision rejecting the
application for cancellation of the school registration, on the ground, that he
had no power to do so. This time the school represented by its secretary Mr.
Chain Khoi Kui filed another writ application (WP NO.140 of 2012)
challenging this decision. On 16th July, 2015 this Court opined that the
Registrar had the power and disposed of the writ by remanding the matter
back to him. An appeal followed. On 14th January, 2016, the Appellate Court
affirmed this order.
On 19th April, 2016 the Registrar ruled that registration of the school was
obtained by suppressing facts. He said that the school according to the
memorandum of association of the Chinese Tannery Owners' Association
belonged to them and was run by their members. It had to amend the
memorandum of association, by permitting the school to be run by a
separate society from their property. Unless this was done the school could
not be registered as a separate association in the self-same premises where
the Chinese Tannery Owners' Association ran the school. Hence, the
registration of the school was cancelled.
In those circumstances the present writ application (WP 518 of 2016) was
preferred. Shortly, the grounds in support of it were that the Registrar did
not have the power to cancel the registration, the respondent authority had
violated the principles of natural justice, by not hearing the appellants and
providing them the documents he relied upon. The authority had no
jurisdiction to try questions of fact like forgery which were before the Civil
Court where disputes between the parties were pending adjudication.
The cancellation of registration would have the effect of dislodging 200 staff
members from the school.
The present writ application was dismissed by a very detailed judgment and
order pronounced by Mr. Justice Arijit Banerjee on 18th May, 2017.
The first and foremost point raised on behalf of the appellants by Mr. Sarkar
learned Senior Advocate was that the Registrar had no power to cancel the
registration of their school Pei May Chinese High School. The West Bengal
Societies Registration Act, 1961 gave him no such power. Power was sought
to be derived from Section 22 of the Bengal General Clauses Act, which was
in the following terms:
"S.22 - Power to issue to include power to add do, amend, vary or rescind
orders, etc. Where, by any Bengal Act or West Bengal Act a power to issue
orders, rules, bye-laws, or notifications is concerned, then, that power includes
a power includes a power, exercisable in the like manner and subject to the
like sanction and conditions (if any), to add to, amend, rescind any order,
rules, bye-laws or notifications so issued."
It was argued that under Section 25 of the said Act on the application of the
Registrar or of not less than 1/10 of the members of a society, the Court
could order dissolution of the society in the following contingencies:
"S-25. (a) if there is any contravention by the society of the provisions of this
Act;
(b) if the number of members is less than seven;
(c) if the society has ceased to function for more than three years;
(d) if the society is unable to pay its debts or meet its liabilities;
(e) if it is proper that the society should he dissolved"
When the dissolution order was made at the instance of the Registrar, it was
made under Section 26 after observing the parafernalias of issuing, serving
and hearing of a show cause notice by him. If the society was unable to show
cause, the Registrar had to refer the matter to the Court for passing an order
of dissolution, he stated.
In Kamla Prasad Khetan and Anr. Vs. Union of India reported in AIR
1957 SC 676, the Court held that the power to revoke or amend an order
was vested in an authority under Section 21 of the General Clauses Act in
the same manner the power to make it was conferred. This view was
reiterated by the same Court in Gopi Chand Vs. Delhi Administration
reported in AIR 1959 SC 609. The power was derived from the statute
which conferred an authority with the power to issue the order or
notification. In Lachmi Narain and Ors. Vs. Union of India and Ors.
reported in (1976) 2SCC 953, the Supreme Court opined that if there was
an express bar in the statute authorising a notification or order to be made,
upon the authority making it, to alter amend or withdraw it, then Section 21
of the said Act could not be employed or could not be set up to justify
amendment or withdrawal of an order. (See also State of Madhya Pradesh
Vs. Ajay Singh and Ors. reported in (1993) 1 SCC 302.
Mr. Sarkar citing all the above cases submitted that although under Section
7 of the West Bengal Societies Registration Act, 1961, the Registrar had the
power to register a society, the Act did not give him any power to cancel the
registration. Section 21 of the said Act could not be invoked to cancel the
registration of the appellant society.
He relied on Shimoga Zilla Madivala Sangha and Anr Vs. The District
Registrar, for Societies & Associations, Shimoga District and Anr.
reported in ILR 2003 KAR 2906 a single bench decision of the Karnataka
High Court held that once the power to register a society under Section 7 of
the said Act had been expressed by the Registrar, he had no further power to
recall that order.
The Supreme Court in Grindlays Bank Ltd. Vs. Central Government
Industrial Tribunal and Ors. reported in 1980 (Supp) SCC 420 cited by Mr.
Mitra, thought that a tribunal under the Industrial Dispute Act had the
power incidental or ancillary to its powers granted to it by the Industrial
Dispute Act, 1957 to set aside ex parte orders.
In Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning & Weaving Mills
Ltd. & Ors. reported in (2005) 13 SCC 777 also cited by Mr. Mitra, the
Supreme Court held that the said Act did not grant any power of substantive
review. The Court made a differentiation between substantive and procedural
review. The former had to be expressly provided by the statute. It involved
review of the order on merits. On the other hand procedural review meant
rectification of an order for some procedural defects. The power to rectify the
orders arising out of procedural was inherent in a tribunal. Mr. Mitra argued
that there was neither any express bar nor implied bar of application of
Section 22 of the Bengal General Clauses Act, 1922 of the West Bengal
Societies Registration Act, 1961.
Mr. Sarkar alleged breach of the principles of natural justice by the
Registrar. He said an opportunity was not given to his clients to meet the
case of the respondents. He showed us the following passage from the
judgment of the Supreme Court in Collector of Central Excise & Land
Customs Vs. Sanawarmal Purohit reported in 1979 (4) E.L.T. J 613 (S.C.)
which held that "It is true that a quasi-judicial authority is not required to hold
an enquiry into a dispute before him according to the procedure followed in a
Court strio to anagu. Where a tribunal which has power to make such inquiry
as it thinks fit, decides a case on a matter of fact discovered by the Tribunal
itself on inspecting the premises in question, it will be a breach of natural
justice if it does not inform the parties and give them a chance of dealing with
it. If a tribunal receives from a third party a document relevant to the subject
matter of the proceedings, it should give both parties an opportunity of
commenting on it: vide Halsbury's Laws of England Vol. 11, p. 66. It was the
duty of the Collector of Customs to inform the persons charged before him of
the charges against them with full details, the evidence in support of the
charges and to give them an opportunity to meet those charges and the
offences against them. A quasi-judicial authority would be acting contrary to
the rules of natural justice if it acts upon information collected by it which has
not been disclosed to the party concerned and in respect of which full
opportunity of meeting the inferences which arise out of it has not been given."
Mr. Mitra referred to the report of the proceedings before the Registrar dated
24th October, 2016 prepared by the Registrar stating that the appellants had
fully participated in the proceedings and that the respondent No 6 in the
Writ Petition No.140 of 2012 was obstructing it by asking for unnecessary
adjournments.
At the outset, I say that he learned Single Judge, on the analysis of facts like
issuance and service of notices of hearing on the appellants, their
unexplained absence at the hearing before the Registrar etc. has opined that
there was no breach of the principles of natural justice. We find no material
or reason to interfere with that finding.
The whole problem in this case is thus.
The entire parcel of land at Tangra of over three bighas was purchased by
the Chinese Tannery Owners' Association on 18th January, 1946. Pei May
Chinese High School was running from P1 and 2 Iswar Model South Tangra
Kolkata-46, which is the municipal address of that very parcel of land. The
address of the Chinese Tannery Owners' Association was Premises No.6 New
Tangra Road, Kolkata - 46, which is different. Now, Pei May Chinese High
School was registered on 19th February, 2010 as a society.
Now, the question which is raised by the appellants is that their society
could be registered under the said Act showing its registered address as that
of the school belonging to the other society. The association says that the
said premises always belonged to the Chinese Tannery Owners' Association.
The object of this association was to run this school. Therefore, whilst the
association was functional no society showing its registered address as that
of the school and with the object of running it could be registered as a
society under the West Bengal Societies Registration Act, 1961. In those
circumstances, its registration was liable to be cancelled.
Our consideration is limited to determining where the Registrar had made a
fair and reasonable decision with regard to the matter in issue. Before we do
that we have to deal with the objection of the appellant that the Registrar,
after registration of the society did not have the power to cancel it.
The Law may be summarised as follows:
A statute may confer both administrative and judicial powers on an
authority. This power may include the authority to issue orders, notifications
and so on. Whilst granting this power the statute may regulate its exercise
by stipulating amongst other things whether the authority would have the
power to review its own decision. It is settled law that a Court of records has
the inherent power to review its decision. The Civil Courts have the same
under the code of civil procedure. It is not a Court of records a Court needs
an express mandate of the legislature to review its own order. If the power
conferred on the authority is administrative and if there is no bar express or
implied in the statute conferring the power upon an authority, to review is
decision, it may do so under Section 21 of the General Clauses Act, 1897 or
Section 22 of the Bengal General Clauses Act, 1922. In some cases like
Grindlays Bank Ltd. Vs Central Government Industrial & Ors. reported in
1980 (Supple) SCC 420 the Supreme Court has recognised the power of a
judicial authority to alter its decision by setting aside ex parte orders or
dismissals for default, although there was no power to review conferred on
the on the judicial authority, by the statute.
In my opinion, the power conferred on the Registrar under the West Bengal
Societies Registration Act is partly administrative or executive and partly
judicial when it comes to registering a society.
Let us first look at Section 7 of the West Bengal Societies Registration Act,
1961. The Registrar is required to be satisfied that the memorandum and the
regulations accompanying it comply with the requirement of the Act and the
Rules. Section 5 deals with the memorandum of Association. It provides that
the Association, in order to register must have a name, address of the
registered office of the association, object of the association.
True the statute does not provide any power to the registrar to "cancel the
registration" although Section 26 empowers him to dissolve the society if it is
not managing its affairs properly or is not functioning. In this case also upon
prima facie formation of an opinion by the Registrar of the above facts, he is
to refer the matter to the Court for an order of dissolution. Section 25
authorises 1/10 of the members of the association to ask the Court for
dissolution on the grounds set out hereinbefore. However, there is no
express or implied bar in the Act forbidding the Registrar from cancelling the
registration.
If there is no bar in the said Act the Registrar had the power to revoke or
recall the registration of a Society in the same manner and subject to the
same restrictions while exercising the power to register it.
Otherwise, look at the great inconvenience and hardship that would be
caused to the Registrar and the general public. Let us take an example. It is
discovered by the Registrar that the identity of the members of an
association had been wrongly or fraudulently disclosed at the time of its
registration. The organisation is that of terrorists. They want to quickly
collect funds in the name of charity and misapply it. This does not fall into
any one of the grounds of Section 25. The Registrar must have the power to
take immediate steps to cancel the registration. He can do so only under
Section 22 of the Bengal General Clauses Act, 1922. I can very firmly say
that the power under Section 22 of the said Act was fully preserved while
enacting the West Bengal Societies Registration Act, 1961. In fact, there is
no provision in the West Bengal Societies Registration Act, 1961 empowering
the Registrar to take immediate action against a society which has registered
itself by practising fraud, forgery misrepresentation etc. or which has been
registered by mistake. In such type of cases where immediate action is
required to save the public from harm is the Registrar supposed to act only
under the long drawn procedure prescribed by Sections 25 and 26 of the
said Act? The answer is no.
Now, let me examine the impugned order of the Registrar dated 19th April,
2016. He observes that in Clause (1) (a) of the memorandum of association of
the Chinese Tannery Owners' Association the school Pei May school at P1
and 2 Iswar Model South Tangra Kolkata-46, would be run by the Chinese
Tannery Owners' Association. This association was registered under the said
Act on 18th May, 1967. This school functions from the said large parcel of
land belonging to the association in Tangra. Pei May Chinese High School
was sought to be registered as an association in 2010 showing the school
premises as its address. Nothing was shown from which it could appear that
the association had given the land and school to the new association or that
had given permission to the school to set up a different society but on the
property of the association. The Registrar came to the conclusion that the
registration was obtained by supression of facts. By its decision dated 19th
April, 2016, it cancelled the registration.
I think that the Registrar acted on the right premises and took the right
factors into account in arriving at this decision. Theoretically there is no bar
to two associations claiming that their offices are at a parcel of land at
Tangra. But the latter association had the obligation to show that either
part of the land was sold to them or given user to them by lease or licence.
The Registrar came to findings of facts which are reasonable and plausible.
Moreover, I am told that civil suits are pending in various courts at Kolkata
between two rival factions of the Chinese association. In this appeal the
Court is not entrusted with any responsibility to ascertain the right, title and
interest of the parties over the above property. The Court is only to see
whether the decision of the Registrar was correctly made and also whether
he exercised his jurisdiction correctly.
I am of the opinion that the Registrar has correctly addressed the facts of
this case in a short order but containing adequate reasons. He has tried to
justify his decision to cancel the registration of the school as a society.
In those circumstances, I think that he exercised his jurisdiction properly.
The learned Court below was correct in identifying this and dismissing the
writ application. The judgment and order dated 18th May, 2017 is affirmed.
This appeal is dismissed. No order as to costs.
Certified photocopy of this order, if applied for, be supplied to the parties
upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)
Amrita Sinha, J.:-
The moot question that is to be decided in the instant appeal is whether the
Registrar of Firms, Societies and Non-Trading Corporation, West Bengal
(hereinafter referred to as the 'Registrar' for the sake of brevity) had the
power and/or authority to cancel the certificate of registration granted in
favour of the appellants.
A certificate of registration was issued by the Registrar in favour of one Pei
May Chinese High School, at P 1 and 2, Iswar Mondal Lane, Kolkata 700 046
on 19th February, 2010.
A complaint was lodged before the Registrar by certain persons claiming
themselves to be the representatives of the said school viz; Chung Chin Ping
and others on 17th August, 2010 with request to reject and cancel the
registration certificate issued in favour of Pei May Chinese High School as
the same had been obtained by forging their signatures in the Memorandum
of Association. As the said complaint was not redressed by the Registrar,
Pei May Chinese High School represented by its Secretary filed a writ petition
before this Court. The said writ petition being W.P. No. 4 of 2011 was
disposed on 10th January, 2011 directing the Registrar to deal with the
allegation made in the petition and pass a reasoned decision after giving
opportunity of hearing to all concerned within six weeks from the date of
communication of this order.
The Registrar vide his order dated 12th August, 2011 disposed of the
aforesaid complaint by observing that 'civil and criminal cases were pending
in between the parties with regards to the same issue and pending final
judgment of the subjudice cases the Registrar has not made any interference
on the proceedings of the judicial authority for which the registering
authority has no power to decide the allegations as alleged and cancellation
thereof whereby the Court of Original Jurisdiction is the ultimate authority
and the decision of the Court would be final and binding upon the parties.'
The reasoned order of the Registrar dated 12th August, 2011 was again
challenged in a writ petition being W.P. No. 886 of 2011 which was disposed
of on 26th September, 2011 whereby this Court set aside the impugned order
and directed the Registrar to give fresh decision complying with the
directions passed by this Court in its order dated 10th January, 2011.
In compliance of the above order the Registrar after hearing both the parties
passed order on 25th January, 2012 rejecting the complaint by observing
that the signatures of the two persons does not appear to be forged. The
Registrar further observed that there is no provision for cancellation of
registration by the Registrar under the provisions of the West Bengal
Societies Registration Act, 1961.
The said order of the Registrar dated 25th January, 2012 was again
challenged in W.P. No. 140 of 2012 which was disposed of on 16th July, 2015
setting aside the order of the Registrar and remanding the matter back to
him for reconsideration. The order of the learned single Judge dated 16th
July, 2015 was carried in appeal and the same was disposed of on 14th
January, 2016 whereby the Hon'ble appeal Court affirmed the order of the
learned single Judge in justifying the remand to the Registrar. The appeal
Court while passing the said order observed that the Registrar did not have
substantive power of review in the Act in question. So far as the procedural
review it is inherent with the authority which passed the order.
The Registrar considered the matter afresh and vide order dated 19th April,
2016 passed order of cancellation of Registration which was again
challenged by filing W.P. No. 518 of 2016 which was disposed of on 18th May,
2017 along with W.P. No. 391 of 2016 whereby the learned single Judge did
not interfere with the order passed by the Registrar.
The judgment dated 18th May, 2017 is under appeal before this Court.
My brother Mukerji, J. has opined that the Registrar exercised his
jurisdiction properly and the Registrar had the power to revoke or recall the
registration in the same manner and subject to the same restrictions while
exercising the power to register it.
I most respectfully disagree with the opinion of my brother. My reasons are
as follows:-
As per the provisions of the West Bengal Societies Registration Act, 1961
a Registrar is appointed under Section 3 of the said Act. According to
Section 4 of the said Act Societies are to be formed by Memorandum of
Association and registration. The Memorandum of Association is required to
be filed along with a copy of the regulation with the Registrar for registration
of the association as a Society under the Act. Section 5 of the Act mentions
the particulars required to be contained in the Memorandum of Association
viz; the name, address of the registered office, objects of the Association,
names of the governing body members, etc. Section 5(2) of the Act bars the
society from changing its Memorandum after registration except in
accordance with the provisions of the Act. Section 6 of the Act mentions
that the Registrar shall not accept any Memorandum for registration unless
the same is accompanied by a copy of its regulations. Section 7 of the Act
empowers the Registrar to register the Society only upon being satisfied that
the memorandum and the regulations comply with the requirements of the
Act. As per Section 7 (3) of the Act an appeal shall lie to the State
Government against an order of the Registrar refusing registration under the
Act and the decision of the State Government on such appeal shall be final.
Section 10 of the Act mentions that,
"10. Name of Society
No society shall be registered under a name which is identical with or
too nearly resembles, the name of any other society or anybody corporate
which has been previously registered or incorporated under this Act or any
other law for the time being in force as the case may be, or is deemed to have
been registered under this Act."
Section 11 (1) of the Act empowers the State Government to direct
change of name as follows:-
"State Government may direct change of name
1) If a society is registered under a name or alters its name to another name
which in the opinion of the State Government, is identical with, or too nearly
resembles, the name of any other society or body corporate which having been
previously registered or incorporated under this Act, or any other law for the
time being in force, or being deemed to have been registered under this Act,
continues to exist, the State Government may by order made in this behalf
direct such society to change its name and alter its memorandum within three
months from the date of the order or such longer period as the State
Government may think fit to allow."
For the purpose of the Act the State Government has framed the West
Bengal Societies Registration Rules, 1963. As per Rule 3 of the said
Rules the Registrar shall examine every document filed in his office for
registration and if the same is found defective or incomplete then only upon
proper rectification proceed with registration of the same. As per Rule 5 of
the said Rules the office of the Registrar shall maintain an index to the
register of the societies in which the names of the societies shall be arranged
alphabetically as soon as entries are made in the register of societies.
From the above provisions of the Act and the Rules framed there under, it is
evident that before registering a society the Registrar is required to be
satisfied with the documents place before him that the same complied with
the requirements of the Act and then only can the Registrar proceed to
register the said society. There are enough provisions in the Act and the
Rules that permits the Registrar to refuse registration and the order of
refusal of the Registrar to register a society is appealable before the State
Government.
A conjoint reading of the Act and the Rules leads to a conclusion that the
Registrar has been vested with the powers to examine the documents,
ascertain facts, verify the details mentioned in the memorandum of
association and its regulations and only after being fully satisfied register the
society and enter its name in the register of societies maintained in his office.
It is only after thorough checks that the Registrar takes a decision to register
a society. This implies that the legislature in its wisdom did not empower the
Registrar with the power to review the registration and cancel the same at a
later date. The Registrar practically becomes functus officio the moment
registration is complete and the name of the society is entered in the register
of societies.
In the instant case the Registrar granted registration to Pei May Chinese
High School on 19th February, 2010. Prior to granting registration the
Registrar must have satisfied himself that the documents placed before him
conformed to the provisions of the Act. The case of the writ
petitioner/private respondent that signatures in the memorandum of
association were forged is an issue that is subjudice before the learned
Criminal Court at Sealdah. A civil suit in between the parties for declaration
and injunction relating to the said school is also subjudice before the learned
Civil Court at Sealdah.
What is to be decided at this stage is whether the Registrar had the power
and authority to cancel the certificate of registration granted in favour of the
society in this case the School. In other words, whether the Registrar had
the power to review his earlier order granting registration and thereafter
cancel the same.
The learned Trial Judge relied upon the provisions of Section 22 of the
Bengal General Clauses Act, 1899 and came to the conclusion that by
virtue of the said provision an authority passing an order in exercise of the
power conferred on it by a Bengal Act or West Bengal Act has been given the
power to review its order by adding or amending or varying or even
rescinding the order. The learned Trial Judge held that the Registrar was
well within his jurisdiction to rescind or cancel the registration certificate.
It is settled law that review is a statutory remedy. The Court cannot confer
jurisdiction upon any authority to review its order. Conferring jurisdiction
upon an authority is a legislative prerogative and the same cannot be
conferred either by the Court or by consent of the parties. Such an order
passed by the High Court is without jurisdiction and therefore a nullity as
held by the Hon'ble Supreme Court in Kalabharati Advertising vs.
Hemant Vimal Nath Navicharia and Ors, (2010) 9 SCC 439. I refrain
from multiplying the judgments on the aforesaid settled proposition.
The learned Advocate appearing on behalf of the appellants relies upon the
decision of Lachmi Narain & Ors. vs. Union of India & Ors. reported in
(1976) 2 SCC 953 where a three Judge Bench of the Hon'ble Supreme Court
relied upon the judgment in the case of Gopichand vs. Delhi
Administration reported in AIR (1959) SC 609 and held that Section 21 of
the General Clauses Act embodies only a rule of construction and the
nature and extent of its application must be governed by the relevant statute
which confers the power to issue notification. The power had to be exercised
within limits circumscribed by the Section and for the purpose which was
conferred.
In Shimoga Zilla Madivala Sangha & Anr. vs. The District Registrar
for Societies and Associations, Shimoga District & Anr. reported in ILR
2003 KAR 2906 the Court held in relation to the Karnataka Societies
Registration Act that there is no power to order for cancellation of
registration of a registered society. Conferring such a power would amount
to providing him the authority to review his order. Such a power must be
expressly conferred by the statute and there cannot be any inherent power to
do so.
In The State of Madhya Pradesh vs. Jay Singh & Ors. reported in (1993)
1 SCC 302 a question arose whether there is power to reconstitute the
Commission by replacement or substitution of the existing member though
not provided in the Commissions of Inquiry Act by invoking the residuary
power to amend or vary any notification under Section 21 of the General
Clauses Act. The Supreme Court held that in a case where the scheme of
the Commissions of Inquiry Act does provide for amendment and variation of
the notification issued under Section 3 for the purpose of reconstitution of
the Commission in the manner indicated even that power to amend or vary
any notification by virtue of Section 21 of the General Clauses Act must be
taken as excluded by clear implication in this sphere of reconstitution of the
Commission. Moreover, the power to amend or vary cannot include the
power to replace or substitute the existing composition of the Commission
with an entirely new composition.
In Kamala Prasad Khetan & Anr. vs. Union of India reported in AIR
1957 SC 676 the Hon'ble Supreme Court held that Section 21 of the
General Clauses Act embodies a rule of Construction and that rule must
have reference to the context and subject matter of the particular statute to
which it is being applied. The Hon'ble Supreme Court qualified that Section
21 of the General Clauses Act makes the power to amend exercisable subject
to the like conditions as in the main Act. It does not contemplate these
conditions upon the fulfilment of which the right to issue the order arises
under the main Act. The conditions referred to in Section 21 are the
conditions to which the order issued under the main Act must be made
subject.
In Lili Thomas vs. Union of India reported in AIR 2000 SC 1650 the
Hon'ble Supreme Court held that the power to review can be exercised for
correction of a mistake and not to substitute a view. Such powers can be
exercised within the limits of the statute dealing with the exercise of power.
The review cannot be treated as an appeal in disguise.
In Rajendra Kumar vs. Rambai reported in AIR 2003 SC 2095 the
Supreme Court held that the first and a foremost requirement for
entertaining a review petition is that the order, review of which is sought,
suffers from any error apparent on the face of the order and permitting the
order to stand will lead to failure of Justice. In the absence of any such
error, finality attached to the judgment/order cannot be disturbed.
The learned Advocate appearing for the appellants stressed on the principle
that what cannot be got directly cannot be given indirectly. He submits that
since the statute does not confer any power to the Registrar to cancel the
registration certificate which had already been issued in favour of a society
the Registrar cannot invoke the provision of Section 22 of the Bengal General
Clauses Act for the sole purpose of cancellation of the certificate of
registration.
The learned Advocate appearing on behalf of the respondent No. 4 submits
that the order of the Hon'ble Division Bench dated 14th January, 2016
attained finality. The appellants accepted the said order and submitted to
the jurisdiction of the Registrar for consideration of the complaint lodged
against them. He submits that the Hon'ble Division Bench held that the
order of the learned Trial Judge in remanding the matter back to the
Registrar was justified and accordingly the appellants are debarred from
opening the issue of jurisdiction of the Registrar to review his order.
It has been submitted that though the West Bengal Societies Registration
Act, 1961 does not have any specific provision empowering the Registrar to
rescind or cancel its earlier order but as the Registrar had acted in
accordance with the direction passed by the Hon'ble Division Bench the
issue attained finality and the principles of res judicata applies in the facts
and circumstances of the instant case. He submits that in the absence of
any specific power in the Act in question the authority is empowered to
review its order by virtue of Section 22 of the Bengal General Clauses Act,
1899. He submits that the certificate of registration had been obtained
surreptitiously by practising fraud.
He further submits that the Hon'ble Division Bench being conversant with
the facts of the case specifically observed that the power of procedural review
is inherent with the authority which passed the order. He also submits that
adequate opportunities were given to the appellants to defend the proceeding
before the Registrar and after dealing with the matter on several dates the
Registrar finally decided to cancel the registration of the appellant. There
has been no question of violation of the principles of natural justice as the
Registrar acted strictly in accordance with the direction passed by the
Hon'ble Division Bench in the matter.
It was submitted that the review of such nature falls under the category of
procedural review. The Registrar being a quasi-judicial authority had the
power to rescind its own order passed earlier. The learned Advocate relies
upon the judgment of the Hon'ble Supreme Court delivered in the case of
Rashid Javed & Ors. vs. State of UP & Ors. (2010) 7 SCC 781 wherein
the Hon'ble Supreme Court held that under Section 21 of the General
Clauses Act an authority which has power to issue a notification has the
undoubted power to rescind or modify the notification in the like manner.
He further relies on the decision delivered in the case of Grindlays Bank
Ltd. vs. Central Government Industrial Tribunal & Ors. 1980 (Supp)
SCC 420 wherein the Hon'ble Supreme Court held that when a review is
sought due to a procedural defect the inadvertent error committed by the
Tribunal must be corrected ex-debito justitiae to prevent the abuse of its
process and such power inheres in several Court or Tribunal. The learned
Advocate prays for dismissal of the appeal.
In Kapra Mazdoor Ekta Union vs Birla Cotton Spinning and Weaving
Mills Ltd & Anr (2005) 13 SCC 777 the Hon'ble Supreme Court held that
review on merits is permissible only in case forum in question is vested with
power of review by statue, expressly or by necessary implication, there exists
no inherent power for the same.
The learned Trial Judge relying on the provisions laid down in Section 22 of
the Bengal General Clauses Act opined that by virtue of the said provision
an authority abusing an order in exercise of the power conferred on in by a
Bengal Act or West Bengal Act has been given the power to review its order
and accordingly held that the Registrar was well within his jurisdiction to
cancel or rescind the registration certificate.
I most respectfully disagree with the opinion formed by the learned Single
Judge as well as my learned brother Mukerji, J.
Registration of a society is made in accordance with the provisions of the West Bengal Societies Registration Act, 1961. Prior to registration the Registrar has been given the power and authority to verify all the documents and only upon being satisfied can proceed with registration of the same. The decision not to register the society is an appealable one. There is no provision in the Act for cancellation of registration. The Hon'ble Division Bench in its order dated 14th January, 2016 specifically observed that there is no substantive power of review in the Act. The Division Bench clearly specified that only 'procedural review' is inherent with the authority. What could be the intension of the legislature not to empower the Registrar to review his own decision under the provisions of the West Bengal Societies Registration Act, 1961? The reason that comes to my mind is that the said Act provides the Registrar a whole lot of pre-registration activities and formalities that are to be mandatorily performed before issuing the certificate of registration, accordingly the legislature did not feel it expedient to provide the Registrar with the power to review the process of registration all over again. Approaching the court for appropriate remedy to prevent miscarriage of justice is always open to an aggrieved party.
Can the question of reviewing the entire process of registration and thereafter cancelling the same be termed as "procedural review"? My answer is in the negative. Three judge Bench of the Hon'ble Supreme Court of India in Satya Pal Anand VS State of M.P & Ors. (2016)10 SCC 767 held in the context of the Registration Act 1908 that "some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case the party aggrieved by such registration of document is free to challenge its validity before the civil court." It further held that "the function of the registering authority is purely administrative and not quasi-judicial. He is expected to reassure himself that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such."
In Shimoga (supra) the Karnataka High Court while dealing with the provisions of Karnataka Societies Registration Act, 1960 held that once the Registrar passed order for registration and the society is registered his power gets exhausted and he becomes unavailable and he cannot subsequently recall the said order except for a different reason i.e. if the society is guilty of the acts of omission or commission an mentioned in Section 27 of the said Act. The Court categorically held that there is no power to order for cancellation of registration of an already registered society. Conferring such a power would amount to providing him the authority to review his power. Such power must be expressly conferred by the statute and there cannot be any such inherent power to do so. The Registrar in the instant case granted registration in favour Pei May Chinese High School. In the order cancelling registration the Registrar comes to the conclusion that it is evident from Clause 1(a) of the Memorandum of Association of the Chinese Tannery Owners' Association that the school in question (Pei May School) at P1 and 2, Iswar Mondal Lane, Kolkata 700046 shall run under the auspices of the Chinese Tannery Owners' Association. The Registrar further observed that the new society that is Pei May Chinese High School emerged as a separate entity at the same address and opined that the Memorandum of Association of Chinese Tannery Owners' Association is required to be amended. He further opined that the registration of Pei May Chinese High School under the separate ambit of the registered society i.e. Chinese Tannery Owners' Association is in violation of the provision of the Act and the registration which was obtained by suppressing the fact is liable to be cancelled.
The reasons for cancellation of the certificate of registration are completely different from the reasons put forward by the complainant being the private respondent seeking cancellation of registration. The complainant sought cancellation of registration on the ground of forgery of signatures. The Registrar comes to the conclusion that a new society with a separate entity which was already registered was not permissible. The Registrar failed to appreciate the complaint and the grievances of the parties in its proper perspective. It was nobody's case that the new society was a part of the already registered association i.e. Chinese Tannery Owners' Association. The Registrar failed to appreciate that the school which was running under the auspices of the Chinese Tannery Owners' Association was under the name and style of Pei May School as recorded in the impugned order of cancellation of registration. The Registrar further failed to appreciate that Pei May School itself was not registered as a society. It further failed to appreciate that the two societies viz; 'Chinese Tannery Owners' Association' and 'Pei May Chinese High School' were separate independent identities. It further failed to note that Chinese Tannery Owners' Association was registered at a different address i.e. 6, New Tangra Road, Kolkata 700046 and Pei May Chinese High School that was registered in the year 2010 had its address registered as P-1 and 2, Iswar Mondal Lane, South Tangra, Kolkata 700046. The name as well as address of the two registered societies being completely different from each other it was not possible on the part of the Registrar to come to a finding that the two societies are related to each other or there was any suppression of fact.
In the order of cancellation of registration which was impugned before the learned Trial Judge the Registrar mentioned that he did not go through the merits of the criminal proceedings pending on the issue and passed order of cancellation on the ground of suppression when in fact there does not appear to be any suppression on the part of the appellants in as much as the appellants sought registration as an independent identity with no relationship with the earlier registered society that is the Chinese Tannery Owners' Association. The Registrar arrived at the conclusion to deregister the society on an absolute different premise not raised or pleaded by the complainants. The Registrar further mentioned that the impugned order of deregistration cannot be cited as precedent unless it is specifically directed by the court of law.
Moreover no new facts or documents were produced before the Registrar to facilitate him to arrive at the decision to deregister the society and the principal allegation of forging the signatures are still pending adjudication before the Ld. Court below.
A bare perusal of the order of cancellation of registration clearly indicates that the Registrar had applied his mind to the facts and circumstances of the case and thereafter had come to the considered opinion that registration had been obtained upon suppression of facts. Can the said decision be termed to be a procedural review? Certainly not. There was neither any procedural error nor any error apparent on the face of the registration certificate which demanded review. The Registrar opened up the entire issue of registration de novo and applied its mind to pass an order for cancellation of registration of the society. Accordingly the decision taken by the registrar cancelling the certificate of registration on the garb of procedural review is absolutely illegal and arbitrary. The Registrar had exceeded its jurisdiction to arrive at the said conclusion.
The next probable question that arises is that what should be the procedure or approach of the Registrar to cancel registration of a society if the same had been obtained by practicing fraud? What if a society had been registered upon suppression or misrepresentation of facts? Will the Registrar be powerless and allow the mistake to perpetuate? The plausible answer in my opinion relying upon the decisions mentioned herein above would be to approach the court of law to remove the illegality and set right the wrong that had been committed. Invoking and applying the provisions of the General Clauses Act in such a situation is not permissible. In the instant case the parties have themselves approached before the civil as well as the criminal courts to redress their grievances. The issue of fraud and forging signatures is also pending before the Court below. The decision delivered in the said cases will in my considered opinion provide complete relief to the parties. In case the court arrives at a finding that the signatures appended to the Memorandum of Association are forged then the Registrar in exercise of its procedural power to review would be free to take a decision to deregister the society as fraud vitiates everything, and in case the court opines that the complaint does not have any merits then the certificate of registration will not be open for scrutiny any further.
In view of the discussions made herein above the impugned judgment and order passed by the Learned Trial Judge is hereby set aside. Appeal is disposed of accordingly.
There will however be no order as to costs.
(Amrita Sinha, J.) As there is a difference of opinion between us, we are referring this matter to the Hon'ble the Chief Justice for appropriate administrative orders. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Amrita Sinha, J.) (I.P. MUKERJI, J.)