Calcutta High Court (Appellete Side)
882 & Ors vs The State Of West Bengal & Ors on 12 September, 2019
1
W.P. No. 9732 (W) of 2019
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
"Vijay Sports Club", a Trust under the Indian Trusts Act,
1882 & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Mr. Jayanta Kumar Mitra, Sr. Advocate
Mr. Surojit Nath Mitra, Sr. Advocate
Mr. Sandip Kumar Bhattacharya, Advocate
Mr. Suman Basu, Advocate
Ms. Debasmita Pramanick, Advocate
For Respondent No. 3 : Mr. Jaydip Kar, Sr. Advocate
Mr. Kallol Basu, Advocate Mr. Souradipta Banerjee, Advocate Mr. Samik Sarkar, Advocate Hearing concluded on : September 3, 2019 Judgment on : September 12, 2019 DEBANGSU BASAK, J.:-
1. Petitioners have sought a direction upon the second respondent to carry out dissolution of the society registered with number S0000319 of 2018-2019 on June 18, 2018 under the West Bengal Societies Registration Act, 1961 and quash/set aside the certificate of registration of such society. 2
2. Learned Senior Advocate appearing for the petitioners has submitted that, the first petitioner was formed on September 21, 1952 by Late Aravamudhan Iyengar. The first petitioner was affiliated with the Cricket Association of Bengal, Bengal Table Tennis Association and Bengal Hockey Federation. The second petitioner created a trust under the Indian Trust Act, 1882 by a declaration of trust dated May 22, 2018 in respect of the first petitioner. Such declaration of trust was registered with the Registrar of Assurances on May 25, 2018. The second respondent allowed a society under the same name and style as that of the first petitioner to be registered under the provisions of the West Bengal Societies Registration Act, 1961. He has referred to section 10 of the Act of 1961 and submitted that, a society with an identical name as that of the first petitioner cannot be registered. The petitioners lodged a complaint with regard thereto with the second respondent on August 6, 2018. The second respondent has not taken any steps as required under sections 10, 11 and 25 of the Act of 1961 till date. Therefore, the second respondent should be directed to consider the objections raised by the petitioners with regard to the registration of the society 3 and take appropriate measures with regard thereto. Learned Senior Advocate appearing for the petitioners has relied upon 1962 Supplementary Volume 1 Supreme Court Reports 156 (Board of Trustees, Ayurvedic and Unani Tibia College v.
State of Delhi & Anr.) in support of his contentions that, a trust is a separate legal entity and should be treated as a body corporate established by a law within the meaning of Section 10 of the Act of 1961. Therefore, the society could not have been registered.
3. Learned Senior Advocate appearing for the third respondent has submitted that, the first petitioner cannot be considered to be a body corporate within the meaning of section 10 and 11 of the Act of 1961 for the second respondent to act on the so-called complaint of the petitioners. He has submitted that, a private trust created by a deed of trust even if registered with the Registrar of Assurances, is not a legal entity or a body corporate within the meaning of the Act of 1961. He has relied upon All India Reporter 1984 Delhi 145 (Duli Chand v. M/s. Mahabir Pershad Trilok Chand Charitable Trust, Delhi) and 2018 4 Volume 9 Supreme Court Cases page 322 (Commissioner of Income Tax (TDS) Kanupr & Anr. v. Canara Bank) in support of his contentions. He has submitted that, in any event, the application for registration under the Act of 1961 was made on May 9, 2018 and that, the second petitioner after becoming aware of the process for registration under the Act of 1961 created the so-called trust. According to him, the trust created by the second petitioner is of no consequence as so far as the Act of 1961 is concerned, in relation to the club concerned. He has pointed out that, there are number of proceedings pending with regard to the affairs of the club before the appropriate forum. He has sought for dismissal of the writ petition.
4. The disputes between the parties relate to a sporting club.
The club has been registered under the Act of 1961. The petitioners claim that, prior to the club being registered under the Act of 1961, by virtue of a deed of trust registered with the Registrar of Assurances, trustees were appointed in respect of the club. Therefore, provisions of Section 10 of the Act of 1961 5 stand violated by the registration of the club with the same name under the Act of 1961.
5. The parties have referred to and relied upon sections 10, 11 and 25 of the Act of 1961 in the course of their submissions. Such sections of the act of 1961 are as follows: -
"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 any body 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.
11. 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 Slate 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 6 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.
(2) No change of name shall affect the rights and liabilities of a society or any legal proceedings by or against the society.
(3) In case of non-compliance with an order under sub-
section (1), every officer in default shall be punishable with fine which may extend lo twenty rupees for every day until the order is complied with.
25. Dissolution by court.- (1) The Court may, on the application of the Registrar or on the application of not less than one-tenth of the members, make an order for the dissolution of a society in the following cases:--
(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;7
(e) if it is proper that the society should he dissolved. (2) When an order for the dissolution of a society is made by the court, dissolution shall take place in such manner as the court may direct."
6. Section 10 of the Act of 1961 regulates the name by which a society can be registered under the Act of 1961. It provides that, no society shall be registered under a name which is identical with, or to nearly resembles, the name of any other society or any body corporate which has been previously registered or incorporated under the Act of 1961 or any other law for the time being in force, as the case may be, or is deemed to have been registered under the Act of 1961.
7. In the facts of the present case, the club has been registered under the Act of 1961. There is a deed of trust registered under the Registration Act, 1909 in respect of such club. The deed of trust appoints trustees in respect of the affairs of the club. The name of the club is same for the certificate of registration under 8 the Act of 1961 as also the deed of trust registered under the Act of 1909.
8. Section 10 of the Act of 1961 prohibits registration of a society under a name which is identical with or too nearly resembles the name of any other society or any body corporate which was previously registered or incorporated under the Act of 1961 or under any other law. Therefore, to come within the prohibition of Section 10 of the Act of 1961, there has to be a body corporate registered either under the Act of 1961 or any other law for the time being in force. A society registered under the Act of 1961 is a body corporate. By body corporate, one understands a voluntary association of persons incorporated under a statute or an association of persons established by a statute, as a juristic entity and capable of perpetual succession. In the facts of the present case, the incident that the petitioners claim to come within the prohibition of section 10 of the Act of 1961 is the registration of the deed of trust under the Registration Act, 1909. The deed of trust appoints natural persons as trustees in respect of a club with the same name as 9 that of the society registered under the Act of 1961. The trustees appointed by the deed of trust registered under the Act of 1909 cannot be considered to be a body corporate established by a statute or incorporated under a statute having separate legal entity and capable of perpetual succession.
9. Duli Chand (supra) has held that, a trust is not a legal entity as such. In fact, a trust may be defined as an obligation imposed on the ostensible owner of the property to use the same for a particular object for the benefit of a named beneficiary or a charity. Thus all trustees in law are owners of the property but they are obliged to use the same in a particular manner. If a number of trustees exist, they are joint owners of the property. It is not like a Corporation which is a legal existence of its own and therefore can appoint an agent. Trust is not in this sense a legal entity. It is the trustees who are the legal entities.
10. Canara bank (supra) has examined the concept of a Corporation. According to it, a Corporation is an artificial being 10 which is a legal person. It is a body corporate established by an act of Parliament or by a Royal Charter. It has noticed the previous authorities on the subject. It has explained the meaning of the words 'established by or under the act'. It has explained that, a Corporation is established by an act, where the act itself establishes the Corporation, such as, State Bank of India Act, 1955 established the State Bank of India. A company incorporated under the Companies Act is not established under the Companies Act as it does not owe its existence to the Companies Act. A company is incorporated and registered under the Companies Act and not established under the Companies Act.
11. Board of Trustees, Ayurvedic and Unani Tibia College (supra) has considered the constitutional validity of Tibbia College Act, 1952 and held that, the state legislature was competent to pass such law. It has observed that, Constitution permits a law being made with regard to what trust or trustees, which is a separate legal entity, by the state. It cannot be read to have laid down a proposition that, a trust created by a deed of 11 trust registered under the Registration Act, 1909 is a body corporate within the meaning of Section 10 of the Act of 1961.
12. To be a body corporate within the meaning of Section 10 of the Act of 1961, a legal entity must be incorporated, registered or established by or under a statute and have perpetual succession. The legal entity may be a society registered under the West Bengal Societies Registration Act, 1961 or any other law for the time being in force permitting the establishment of or incorporation and registration under such law of a legal entity. In the facts of the present case, the first petitioner cannot be said to be a body corporate within the meaning of Section 10 of the Act of 1961 for the embargo under such section to apply.
13. Since the first petitioner has been found not to be a body corporate coming within the purview of Section 10 of the Act of 1961, therefore, the requisition made by the petitioners on the second respondent is of no consequence. The second respondent 12 therefore cannot be called upon to decide the complaint of the petitioners and deregister the society.
14. In view of the discussions above, no relief can be granted to the petitioners. W.P. No. 9732 (W) of 2019 is dismissed. No order as to costs.
15. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities [DEBANGSU BASAK, J.]