Kerala High Court
Nechippadappu Muhiyudheen Masjid ... vs State Of Kerala on 28 September, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940
WP(C).No. 31753 of 2018
PETITIONER/S:
NECHIPPADAPPU MUHIYUDHEEN MASJID COMMITTEE
REG NO. 230/2012, ALAMPADY POST, KASARGODE,
REPRESENTED BY ITS SECRETARY, ABOOBACKER B.A.,
S/O ABDULLA, NECHIPADUPPA, ALAMPADY POST,
KASARGODE DISTRICT.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 THE DISTRICT REGISTRAR
KASARGODE, OFFICE OF THE DISTRICT REGISTRAR CIVIL
STATION A BLOCK, VIDYANAGAR POST KASSARGODE 671123
3 M.M. ABOOBACKER,
S/O. MAHIN KUNJU, MECHIPODATH HOUSE, ALAMPADY POST,
KASARGODE DISTRICT 671123
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1 AND
R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C).31753/18 :2:
ALEXANDER THOMAS, J
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W.P.(C) No.31753 of 2018
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Dated this the 28th day of September, 2018
JUDGMENT
The prayers in this writ petition are as follows:
I. to call for records leading to Exhibit P1 to P3 and set aside the endorsement in Exhibit P3 made by the 2nd respondent rejecting Exhibit P3 by issuing a writ of certiorari or any other appropriate writ, direction or order.
II. To direct second respondent to examine Exhibit P3 representation submitted by the petitioner and conduct enquiry and pass order regarding the Annual List of Managing Body to be accepted by the 2nd respondent after hearing the petitioner as expeditiously as possible by issuing a writ of mandamus or any other appropriate writ, direction or order.
III. To direct second respondent to accept Exhibit P2 annual list of managing body for 2018-19 submitted by the petitioner in accordance with Section 4 of the Societies Registration Act by issuing a writ of mandamus or any other appropriate writ, order or direction.
IV. To direct the 2nd respondent to keep in abeyance further proceedings based on the list purportedly submitted as the Annual list of Managing body by the third respondent for the year 2018-19 before the 2nd respondent pending consideration of Exhibit P3 in accordance with law by issuing a writ of mandamus or any other appropriate writ, order or direction.
W.P(C).31753/18 :3:
2. Heard Smt.M.Shajna, the learned counsel
appearing for the petitioner and Sri.Sagi Jacob Palatty, the learned Senior Government Pleader appearing for respondents 1 and 2. In the nature of the order proposed to be passed by this Court, notice to the 3rd respondent will stand dispensed with.
3. The petitioner is aggrieved by the refusal on the part of the 2nd respondent District Registrar to accept Ext.P2 Annual List of the Managing body for 2018-2019 in respect of the petitioner Society, which was submitted by the Secretary of the said petitioner Society.
According to the petitioner, the impugned rejection decision has been endorsed on Ext.P3 petition itself by the 2nd respondent, without showing any reasons and without granting any opportunity of being heard to the petitioner. The petitioner Society is said to be registered under the provisions of the Societies W.P(C).31753/18 :4:
Registration Act. According to the petitioner, list of new committee members was duly submitted to the 2nd respondent Registrar as per Section 4 of the Act and it has resulted in the impugned rejection decision as endorsed in Ext.P3 petition. Further, it is stated that the 3rd respondent had earlier submitted a list claiming that the said list would show the actually elected committee members of the Society for the year 2018-2019. According to the petitioner, the said list submitted by the 3rd respondent is a bogus and false list;
whereas the list submitted by the petitioner contains not only the names of the newly elected committee members for the year 2018- 2019, but also the Minutes of the general body meeting in which the election had taken place, as well as the earlier list of committee members for the previous three years, in order to fortify the claim that the list furnished by W.P(C).31753/18 :5:
the petitioner is the list of the duly elected committee members of the Society, etc. According to the petitioner, the list of the 3rd respondent which the 2nd respondent has acted upon, is a bogus and false list and that the 2nd respondent is duly obliged to conduct a summary enquiry to ascertain as to whether the said list furnished by the 3rd respondent is bogus and false and that as the 2nd respondent has failed to discharge that vital obligation, he has to consider the matter afresh. In that regard, the petitioner also places reliance on the judgment of this Court in the case in Narayanan K.K. and Others v. District Registrar, Kasaragod and Others reported in [2015 (4) KLT 1028] wherein it has been held that the notified Registrar of the Societies registered under the Societies Registration Act, 1860 will have the limited jurisdiction of examining whether the list furnished is false W.P(C).31753/18 :6:
or bogus, even though the said enquiry cannot be directed against the election or selection; but only to find out the genuineness of the list. Paragraphs 7 and 9 of the said decision reported in Narayanan's case (supra) reads as follows:
"7. The registration and related matters, as noted above, are with an intention to confer the status of juridical entity. The affairs of the Society continue to be in private domain unless it is called upon to discharge any public duty. The regulatory regime relating to a Society for registration, does not confer any power on the Registrar to interfere with the affairs of the Society. In this context, the election and selection of the candidates have been called in question before the Registrar, to the limited extent of challenging the list furnished by the newly elected Executive Committee. Therefore, the question is, what is the extent of the power that can be exercised by the District Registrar?
9. The dispute in question clearly indicates that the challenge is regarding the W.P(C).31753/18 :7:
selection of the Executive Committee members. The Society consists of three different types of class members vis-a-vis 'A' Class, 'B' Class and 'C' Class members. The District Registrar in Ext. P9 found that the selection of the candidates was illegal and in violation of the bye - laws. The District Registrar has no power to interfere with the selection in the election process. The scope of exercising power under S.4 of the Societies Registration Act is only to the limited extent of examining whether the list furnished is false or bogus. The enquiry is not directed against election or selection but to find out the genuineness of the list. Once a list is furnished in accordance with the election, the scope of enquiry would come to an end, even if the selection is bad. The scope of enquiry is only to find out whether the list being furnished is not by way of any bogus claim or by fraudulent claim. The Division Bench of this Court in C. M. Z. Musliar v. Aboobacker, 1998 KHC 26 : 1998 (1) KLT 136 :
ILR 1998 (2) Ker. 76 held in para. 10 as follows:
"10. In the aforesaid background, we have to find out the scope of S.4 of the Societies Registration Act. The filing of the returns with regard to the office bearers is for a purpose. The mere fact W.P(C).31753/18 :8:
that the section does not clearly state that the Registrar has got power with regard to the acceptance of the returns does not mean that he can accept any number of returns with regard to the same society. That will not serve the purpose of filing of the returns as contemplated. Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of Court orders and also it was being followed for a large numbers of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent Court as to who are the members of the governing body"
4. The petitioner has filed Ext.P3 Representation dated 12.9.2018 before the 2nd respondent, contending that the list furnished by the 3rd respondent is false and bogus and that the W.P(C).31753/18 :9:
correct list of the duly elected committee members of the Society is the one furnished by the petitioner, etc. It is in the light of these factual averments that the petitioner has filed this writ petition with the afore mentioned prayers.
5. Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for respondents 1 and 2 would submit that in case the 2nd respondent District Registrar has already acted upon the list submitted by the 3rd respondent, then he cannot have the jurisdiction to go into the merits any further and the remedy of the petitioner wold be to approach the competent civil court, etc.
6. Without examining the merits of the controversy in any manner as also the issue of maintainability, it is ordered that the 2nd respondent will consider and pass appropriate orders on Ext.P3 Representation dated 12.9.2018, W.P(C).31753/18 :10:
in accordance with law, after affording a reasonable opportunity of being heard to the petitioner and the 3rd respondent. The process in this regard will be duly completed and orders in this regard will be duly rendered and communicated to the petitioner within one month from the date of production of a certified copy of this judgment. The petitioner may produce certified copy of the judgment to the 2nd respondent. The Registry will forward a certified copy of the judgment to the 3rd respondent at the cost of the petitioner.
With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS
JUDGE
okb
W.P(C).31753/18 :11:
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ANNUAL LIST OF
MANAGING BODY OF PETITIONER SOCIETY REGISTERED NO./ 230/2012 FOR THE YEAR 2015-16 SUBMITTED BEFORE SECOND RESPONDENT EXHIBIT P1 A TRUE COPY OF THE ANNUAL LIST OF MANAGING BODY OF PETITIONER SOCIETY REGISTERED NO. 230/2012 FOR THE YEAR 2016-17 SUBMITTED BEFORE SECOND RESPONDENT EXHIBIT P1 B TRUE COPY OF THE ANNUAL LIST OF MANAGING BODY OF PETITIONER SOCIETY REGISTERED NO.230/2012 FOR THE YEAR 2017-18 SUBMITTED BEFORE SECOND RESPONDENT EXHIBIT P2 TRUE COPY OF THE ANNUAL LIST OF MANAGING BODY OF PETITIONER SOCIETY REGISTERED NO. 230/2012 FOR THE YEAR 2018-19 SUBMITTED BEFORE SECOND RESPONDENT EXHIBIT P3 TRUE COPY OF REPRESENTATION SUBMITTED BY PETITIONER BEFORE SECOND RESPONDENT DATED 12.09.2018 IN RESPECT OF SOCIETY REGISTERED AS REGISTERED NO. 230/2012 ON THE REGISTER OF THE SECOND RESPONDENT //True copy// P.A. to Judge