Madras High Court
Prof.M.Ponnambalam vs State Of Tamil Nadu
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.No.8135 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.09.2022
DELIVERED ON : 09.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.No.8135 of 2008
Prof.M.Ponnambalam .. Petitioner
Vs.
1. State of Tamil Nadu,
rep. by the Secretary to Government,
Commercial Taxes & Registration Department,
Fort St.George, Chennai.
2. Inspector General of Registration,
Department of Registration, Chennai.
3. The District Registrar,
Ariyalur.
4. The President,
Nehru Educational Society,
Nehru Street, Puthinampatti,
Thiruchirapalli District
(R4 impleaded as per order of this Court
dated 28.06.2013 in M.P.No.1 of 2009 and
R4 Cause Title amended as per order of this
Court dt.23.06.22 made in WMP.No.15183/22) .. Respondents
Prayer: Writ Petition has been filed under Article 226 of the Constitution of
India seeking a Writ of Mandamus directing the respondents to enforce and
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W.P.No.8135 of 2008
implement Sections 36, 37(a), 39, 40, 42 and other provisions of the Tamil
Nadu Societies Registration Act 1975, carry out the procedures provided
therein and complete the process of dissolution of the Nehru School
Committee Society, Puthanampatti made under Section 44(4) of the said Act
within a time frame.
For Petitioner : Mr.T.P.Manoharan
SC for Mr.K.P.Jotheeswaran
For Respondents 1 to 3 : Mr.S.Ravikumar
Special Government Pleader
For Respondent 4 : Mr.T.M.Hariharan
-----
ORDER
This writ petition has been filed seeking issuance of a Mandamus directing the respondents 1 to 3 to enforce and implement Sections 36, 37(a), 39, 40, 42 and other provisions of the Tamil Nadu Societies Registration Act 1975 (hereinafter referred to as 'the State Act, 1975') and carry out the procedures provided therein and complete the process of dissolution of the Nehru School Committee Society, Puthanampatti made under Section 44(4) of the said Act with a time frame.
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2. It is the case of the petitioner that his late father Mooka Pillai formed a Society in the name of "The Nehru School Committee" and registered the same as Regn.No.9 of 1947 under the Societies Registration Act, 1860 (hereinafter referred to as "the Central Act 1860"). Through the said Society, he established a Middle School in the name of Nehru Middle School and subsequently upgraded it as Nehru High School and thereafter upgraded it as Nehru Higher Secondary School. He has also formed a Managing Committee for administering and managing the affairs of the Society and the school. He was running the school with the aid provided by the Government of Tamil Nadu.
3. As per the Rules and Regulations of the Society, the President shall be the Executive Head of the Society, and also the Correspondent as well as the Manager of the School. As the founder of the Society the petitioner's father shall be the President for the Society and the Managing Committee for his life and after his death or resignation, his four sons, including the petitioner and the fourth respondent herein shall be the President each for one year successively in turns or all of them jointly nominate one amongst them as the President.
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4. Pursuant to the enactment of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 (hereinafter referred to as 'the Private Schools Act, 1973'), which came into effect on 01.12.1974 the said school was recognized by the authorities and the school was running in accordance with the Private Schools Act. The petitioner has been nominated as the Secretary of the Nehru School Committee and the Managing Committee.
5. Thereafter, the Tamil Nadu Societies Registration, 1975 came into force w.e.f 22.04.1978. In view of Section 53 of the State Act, 1975 the Nehru School Committee Society registered under the Central Act, 1860 was deemed to be registered under the State Act, 1975 and its bye-laws which were not inconsistent with the provisions of the State Act, 1975 are continued in force.
6. At that time, the petitioner's brother and the fourth respondent herein was functioning as the Secretary of the Nehru School Committee Society. Further he has failed to keep proper books of accounts, get it audited and failed to file the required documents before the third respondent within the time stipulated under the State Act, 1975. Therefore, in exercise of the powers conferred under Section 44(3)(b) of the State Act, 1975, the https://www.mhc.tn.gov.in/judis 4/29 W.P.No.8135 of 2008 respondents 2 and 3 have issued a show cause notice to the Nehru School Committee Society. Even thereafter the accounts have not been furnished. Therefore, the first respondent exercising his powers under Section 44(4) of the State Act, 1975, struck off the name of the Nehru School Committee Society from the Register and also published a notice therefor in the Tamil Nadu Government Gazette dated 01.01.1992.
7. According to the petitioner, from that date onwards the Nehru School Committee Society was deemed to be dissolved. Even after that, the fourth respondent has not taken any action under Section 44(5) of the State Act, 1975 for restoration of the Society. Therefore, the Society was not restored under Section 44(5)(b) or (6) of the State Act, 1975 and the dissolution of the Society has become final.
8. According to the petitioner, after the dissolution of the Nehru School Committee Society, as required under Section 44(8) of the State Act 1975 no further action has been taken. The Nehru School Committee Society has not passed any special resolution and dissolved itself in the manner provided under Section 41 of the State Act, 1975. Therefore, the respondents 2 and 3 have to exercise the powers conferred under Section 40 https://www.mhc.tn.gov.in/judis 5/29 W.P.No.8135 of 2008 of the State Act, 1975 on their own and appoint a Liquidator to wind up the Society. However the respondents 2 and 3 have not exercised their statutory powers and has not taken action as provided under Section 40 of the State Act, 1975.
9. It is also stated that in view of Section 42 of the State Act, 1975 the dissolved Society shall pass a Special Resolution, determining and giving the property, if any, remaining after the satisfaction of all its debts and liabilities to another registered Society or Association of Persons having the same or similar objects and this is the only method prescribed in the State Act, 1975.
10. The dissolution of the Nehru School Committee Society made by the respondents 2 and 3 under Section 44(4) of the State Act, 1975 would be complete only after carrying out the procedure provided under Sections 36, 37(a), 39, 40 & 42 of the State Act, 1975. According to the petitioner, the above Sections are mandatory and as the same has to be followed, therefore seek a Mandamus.
11. The third respondent has filed a counter and inter alia it is stated https://www.mhc.tn.gov.in/judis 6/29 W.P.No.8135 of 2008 that as the Society has not filed the annual statement prescribed under Section 16(3)(b) of the State Act, 1975 from the year 1978-79. Therefore, a notice under Section 44(3) was published in the Tamil Nadu Government Gazatte on 07.04.1991, stating that the name of the Society will be struck off from the Register unless cause is shown to the contrary within three months from the date of publication. The Society has not sent any response to the notification within the prescribed time and hence the name of the Society was struck off in the register and notice thereof was published in the Government Gazette on 01.01.1992 as provided under Section 44(4). The Society has not preferred any appeal to the second or the first respondents. According to them, Section 44(8) came into effect from 10.03.1994 and the amendment has only prospective effect, the respondents could not windup the Society under Section 40 on the failure of the Society in dissolving itself.
12. It is their contention that the members of the defunct Society forming a new society with the objects of the defunct society and continue to administer the school earlier administered by the defunct Society is not specifically prohibited in the State Act, 1975.
13. Additional counter affidavit has been filed by the third https://www.mhc.tn.gov.in/judis 7/29 W.P.No.8135 of 2008 respondent, wherein, it is stated that under Section 44(4) of the State Act, 1975 the Society is deemed to be dissolved on 01.01.1992 itself. The Tamil Nadu Societies Registration (Amendment) Act, 1993 (Tamil Nadu Act 16 of 1994) came into force on 10.03.1994. It is only prospective in nature and therefore they followed the unamended Act and struck off the Society under Section 44. It is further stated that the averment that respondent failed to take action under Section 40 of the Act for appointment of liquidator is legally unsustainable. Further, Sections 39 and 40 was made applicable only by way of an amendment which is subsequent to the happening of the events stated in the writ petition.
14. It is also stated that the other members of the deemed to be dissolved Society have formed another new Society under the name and style "Nehru Educational Society" and have taken control of the assets of the struck off registered Society. The assets of the old struck off Society has been transferred without any formation of Special Committee and passing of resolution with regard to transfer of assets. It is further stated that this Court in W.P.(MD)Nos.10736 of 2009 has held that transfer of the assets in the name of the new Society is legally not valid. Hence sought dismissal of the writ petition.
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15. The fourth respondent has also filed a counter wherein it is stated that the provisions of Sections 40, 41, 42, 43 and 44 of the State Act, 1975 can be invoked only by a member of the society and any person who is not a member on the date when the society was declared to be defunct cannot maintain any proceedings for the purpose of grant of any relief.
16. The Nehru School Committee Society has been declared to be defunct by the Tamil Nadu Government by virtue of the Notification dated 01.01.1992, the Society has ceased to exist and it is always open to the members of the previous Society to pass a special resolution for the purpose of transfer of the properties of the defunct society to another registered Society having a similar purpose and object in view. Hence, it is stated that the Nehru Education Society a newly registered Society which has taken over the property of the Nehru School Committee Society is absolutely valid and lawful. Nehru Education Society has also obtained necessary sanction and approval under Section 8 of the Tamil Nadu Private Schools Regulation Act, 1973 and the said school is in currency and the petitioner cannot vex any grievance in respect of the same.
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17. It is also stated that the petitioner for the very same relief has launched a proceedings in Registration O.P.No.1 of 2007 through a proxy before the learned Principal District Court, Thiruchirapalli and has lost the same and the order was made on 18.07.2007. Hence, oppose this writ petition.
18. The learned senior counsel appearing for the petitioner would submit that though the Society was originally founded by the father of the petitioner and the fourth respondent, the Society was originally registered under the Central Act, 1860 and subsequently the school was upgraded from Nehru Middle School to Nehru Higher Secondary School. As per the bye- law of the Society the father of the petitioner and the fourth respondent as the founder of the Society shall be the President of the Society and the Managing Committee for his life and after his demise his four sons including the petitioner and the fourth respondent shall be the President each for one year successively in turns or all of them jointly nominate one amongst them as the President. He further stated that the school was also recognised under the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973.
19. The learned senior counsel for the petitioner further submitted https://www.mhc.tn.gov.in/judis 10/29 W.P.No.8135 of 2008 that, when the State Act, 1975 came into force, at that time the fourth respondent was functioning as the Secretary of the Nehru School Committee Society and he has not filed the accounts for three consecutive years as required under the Act. Therefore, in exercise of the powers under Section 44(4) of the State Act, 1975 the respondents 2 and 3 issued show cause notice and thereafter struck off the Nehru School Committee Society from the Register and the same was also published in the Tamil Nadu Government Gazette on 01.01.1992. Therefore, the learned senior counsel contended that the order striking off of the society has become final and publication in the Government Gazette has also been made. Hence it is his contention that once the name of the registered society has been struck off in the register and the same has not been restored or if the period allowed for appeal has lapsed or no appeal has been made or any appeal has been made but dismissed, under the State Act, 1975, the registered society shall not function and the provisions of Section 39 shall apply as if the registration of such Society has been cancelled.
20. It is his further contention that when the registration of a registered society is cancelled, the registered society shall forthwith cease to carry on its business, except so far as may be required for the beneficial https://www.mhc.tn.gov.in/judis 11/29 W.P.No.8135 of 2008 winding-up thereof, for which purpose it shall pass a special resolution and dissolve itself in the manner provided in Section 41.
21. It is the contention of the learned senior counsel for the petitioner that when a Society is struck off there must be a special resolution for finally winding up, which has not been done in this case. It is his contention that on the contrary the fourth respondent has formed a new Society and usurped the property of the Society and utilised it. Therefore with the advent of the State Act, 1975 there must be a special resolution for the purpose of beneficial winding up, which has not been done so.
22. Further according to the learned senior counsel for the petitioner, when the registration of a registered Society has been cancelled, the Registrar may appoint a liquidator to wind-up the society if the society has not, within such period as may be prescribed from the date of the order of cancellation, has taken any action under Section 39. Hence, it is his contention that there must be a special resolution for beneficial winding up and in the absence of a special resolution, the liquidator shall be appointed by the Registrar which has also not been done in this case, hence he seeks a Writ of Mandamus. In support of his submissions, the learned senior https://www.mhc.tn.gov.in/judis 12/29 W.P.No.8135 of 2008 counsel appearing for the petitioner relied upon the following judgments:
(i). Kunwar Pal Singh Vs. State of U.P. (2007) 5 SCC 85
(ii) Asha Vs. PT.B.D.Sharma University of Health Sciences (2012) 7 SCC 389
(iii) Yadhavar Kalvi Nithi Vs. State of Tamil Nadu 2013 (2) CTC 241
(iv) State of Orissa Vs. Mamata Mohanty (2011) 3 SCC 436
(v) Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (2019) 14 SCC 449
(vi) Dr.Kashinath G.Jalmi Vs. The Speaker (1993) 2 SCC 703
23. Whereas, the learned Special Government Pleader appearing for the respondents 1 to 3 would submit that the Society was registered in the year 1947 under the Central Act, 1860 and also recognised by the Private Schools Act, 1973. Thereafter, the State Act, 1975 came into force in the year 1978. On 07.04.1991, notice was give by the authority to the Society for non submission of the annual returns to the third respondent and thereafter the Society was struck down on 01.01.1992. It is his contention that the petitioner has filed a suit in O.S.No.402 of 1992 before the Sub Court, Tiruchirappalli which was converted as O.S.No.154 of 2012 on the file of https://www.mhc.tn.gov.in/judis 13/29 W.P.No.8135 of 2008 the learned Principal District Judge, Tiruchirappalli. O.P.No.1 of 2007 and a writ petition has been filed after a period of 16 years after the Society has become defunct and it is clear case of latches.
24. It is his contention that Section 44(8) came into force in the year 1994, whereas the Society has been struck of in the year 1982. The amendment to Section 44(8) is only prospective in nature and prior to that there is no provision under the Act for winding up by passing a special resolution. Only with regard to the cancellation such procedure is contemplated under the unamended provision. Hence, the learned Special Government Pleader submitted that now the provision under Section 44(8) cannot be given retrospective effect. Therefore, his contention is that the writ petition is nothing but an abuse of process of law and as the civil suit has also been filed, the rights of the parties can be adjudicated only in the civil suit. A Division Bench of this Court has also held that the grievance has to be addressed by way of civil suit in the same matter. Therefore, the learned Special Government Pleader appearing for the respondents 1 to 3 submitted that the writ petition is not maintainable. He also relied upon the following judgments in support of his submissions:
(i) V.Kuppusamy Reddiar Vs. The Collector https://www.mhc.tn.gov.in/judis 14/29 W.P.No.8135 of 2008 (2005) 1 CTC 241
(ii) Haji B.Pakkir Mohammed Vs. Government of Tamil Nadu (2011) 6 CTC 485
(iii) Swamy Atmananda Vs. Sri Ramakrishna Tapovanam (2005) 10 SCC 51
(iv) Hope Textiles Ltd Vs. Union of India (1995) Supp (3) SCC 199
(v) Rajasthan State Industrial Development and Investment Corporation Vs. Diamond & Gem Development Corporation Limtied (2013) 5 SCC 470
(vi) State of Madhya Pradesh Vs. Bhailal Bhai (1964) 6 SCR 261
25. The learned counsel appearing for the fourth respondent would submit that the petitioner is the brother of the fourth respondent. There is a serious grievance with regard to the management of the Nehru School Committee Society. The provisions of Sections 40, 41, 42, 43 and 44 of the State Act, 1975 can be invoked only by a member of the Society and any person who is not a member on the date when the Society was declared to be defunct cannot maintain any proceedings for the purpose of grant of any relief before this Court.
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26. Heard the learned counsel for the parties and also perused the records carefully.
27. It is an admitted fact that originally the Society was formed in the year 1947 under the name Nehru School Committee Society, which was registered under the Central Act, 1860 and the father of the petitioner and the fourth respondent was the president till his death. Thereafter, it appears that the school was also recognised under the Private Schools Act, 1973. Thereafter, the State Act, 1975 came into force by virtue of the State Act, 1975 which came into force on 22.04.1978 and the Society registered under the Central Act shall be deemed to be registered under the State Act, 1975 and if its bye-laws which were not inconsistent with the State Act, 1975 continue to be in force. It is an admitted fact that when the State Act, 1975 came into force, the fourth respondent was in charge as Secretary of the Nehru School Committee Society. As he failed to submit the annual return for three consecutive years, proceedings have been initiated under Section 44(4) of the State Act, 1975 and the Society has been struck off from the Register of Society. It was also published in the Tamil Nadu Government Gazette and no appeal whatsoever has been filed. Therefore, striking off of the Society from the Register of Society has become final. In the https://www.mhc.tn.gov.in/judis 16/29 W.P.No.8135 of 2008 meanwhile, the fourth respondent has also formed a new Society and registered the same under the State Act, 1975 and the same was also recognized under the Private School Act, 1973.
28. The main grievance of the petitioner is that since the State Act, 1975 provides for beneficial winding up of the Society for the purpose of transfer of the properties, the respondents 1 to 3 have not taken any action to follow the procedure or to appoint liquidator for winding up proceedings. According to the petitioner, the fourth respondent has usurped the properties of the society without following the mandatory procedures contemplated under the State Act, 1975. Therefore, it is not valid in the eye of law. Much emphasis was made to the provisions contained in Section 44(8) of the State Act, 1975 which reads as follows:
"Section 44: Removal of defunct registered societies:
(8) If the name of the registered society having been struck off the register, has not been restored or if the period allowed for appeal has lapsed or no appeal has been made or an appeal has been made but dismissed, under this Act, the registered society shall not function and the https://www.mhc.tn.gov.in/judis 17/29 W.P.No.8135 of 2008 provisions of Section 39 shall apply as if the registration of such society has been cancelled."
29. The above provision makes it clear that if the Society has been struck off from the Register and it has not been restored or if the period allowed for appeal has lapsed or no appeal has been made or no an appeal has been made but dismissed, under the State Act, 1975, the Registered Society shall not function and the provisions of Section 39 shall apply as if the registration of such society has been cancelled.
30. It is relevant to note that sub section (8) of Section 44 was inserted by Section 4 of the Tamil Nadu Societies Registration (Amendment) Act, 1993 (Tamil Nadu Act 16 of 1994) on 14.05.1992. The amendment introduced under Section 44(8) came into effect on 10.03.1994, no retrospective effect was given in the provision. Therefore, only by way of amendment, the procedure contemplated under Section 39 of the Act for registered society made applicable as if the registration of the Society has been cancelled.
31. Section 39 deals with the effect of cancellation of registration. A https://www.mhc.tn.gov.in/judis 18/29 W.P.No.8135 of 2008 careful perusal of the said Section make it very clear that when the registration of the registered society is cancelled, the registered society shall forthwith cease to carry on its business, except so far as may be required for the beneficial winding-up thereof, for which purpose, it shall pass a special resolution and dissolve itself in the manner provided in Section 41.
32. Section 41 deals with the dissolution of registered societies and adjustment of their affairs. Prior to the amendment to Section 44(8) the procedure for winding up and passing of special resolution requires only where the Society's registration has been cancelled. There was no provision dealing with regard to the passing of the special resolution with regard to the registered society which is struck off from the Register of the Societies. Therefore, the petitioner now seeks a direction to take action as per Sections 39 and 41 of the State Act, 1975 which originally meant for passing resolution in respect of the society whose registration has been cancelled. Now by incorporating Sub Section 8 to Section 44 same procedure is also introduced to the struck off society. There is no indication that the amended provision is retrospective in nature. This Court is of the view that the direction against the respondents 1 to 3 to follow the procedure which was introduced later after the society was struck off is not sustainable. https://www.mhc.tn.gov.in/judis 19/29 W.P.No.8135 of 2008
33. It is also admitted by both sides that the new society formed by the fourth respondent is also recognized under the Private Schools Act, 1973. Now the fourth respondent has also filed a writ petition in W.P.(MD)No.19692 of 2013 against the State, the Joint Director of School Education, the Chief Educational Officer and the Head Master of the school without indicating that the petitioner is running the affairs of the society. This Court by an order dated 12.08.2022 has passed the following order:
"6. In view of the above said facts, this Court is inclined to pass the following order:
"(i) Since the authorities have already interfered in the administration of the School, the question of issuing Mandamus, forbearing them does not arise at this point of time.
(ii) As directed by the Hon'ble Division Bench, in its order, dated 26.07.2019, the second respondent herein is directed to dispose of the application relating to transfer of educational agency pending before him, after giving due opportunity to the second petitioner and the seventh respondent herein.
(iii) Till orders are passed by the second respondent herein, the present position relating to https://www.mhc.tn.gov.in/judis 20/29 W.P.No.8135 of 2008 the administration and management of the School shall continue.
(iv) The above said exercise shall be completed within a period of three (3) months from the date of receipt of a copy of this order. The second respondent is directed to strictly comply with the time limit fixed by this Court, in view of the previous orders passed by this Court in W.A(MD)Nos.175 and 176 of 2012."
34. It is also relevant to note that on an earlier occasion in W.P.(MD) No.10736 of 2009 and W.P.(MD) No.4447 of 2010 and Contempt Petition (MD) No.699 of 2010, a learned Single Judge of this Court has passed an order holding that mere pendency of the civil suits cannot bar the Government to take decision as they do not relate to Government exercising its power under the Private Schools Act. The said order of the learned Single Judge was challenged in a Writ Appeal before a Division Bench of this Court in W.A.(MD)Nos.175 and 176 of 2012. The Division Bench of this Court held that the inter se dispute between the parties about the management can deserve to be decided by the competent civil courts only. The issue raised before the Joint Director of the School Education, Chennai, in response to the show cause notice dated 27.08.2009, deserves to be https://www.mhc.tn.gov.in/judis 21/29 W.P.No.8135 of 2008 decided by the said authority under the provisions of the Tamil Nadu Recognised Private School (Regulation) Act, 1973. In those circumstances, the Division Bench directed the second respondent, Joint Director of School Education, Chennai to decide the issue raised before him, after hearing the appellant therein as well as the other parties, whoever may be interested in the said lis, in accordance with law, within a period of three months from the date of the said judgment. The parties were directed to appear before the second respondent in the first instance on 19.08.2019. With the above direction the writ appeals were disposed of by the Hon'ble Division Bench.
35. Now, the School Education Department has taken control of the school and the salary has been promptly paid by them which has also been challenged and this Court in the writ petition referred to above has passed the order as stated above.
36. It is also relevant to note that the Civil Suit filed by the petitioner in O.S.No.154 of 2012 before the learned Principal District Judge, Tiruchirappalli seeking various reliefs for declaring that Nehru School Committee had ceased to exist and that neither the defendants 5 and 6 nor anyone else is entitled to function or transact any business on behalf of https://www.mhc.tn.gov.in/judis 22/29 W.P.No.8135 of 2008 Nehru School Committee and for permanent injunction restraining the 2nd defendant therein from permitting either defendants 5 and 6 to transact business in the name of Nehru School Committee touching the activities of Nehru Higher Secondary School and for permanent injunction and also sought for declaration that the registration of the 8th defendant therein in the Register of Societies is without jurisdiction and ultra virus. The above suit was contested and after contest the suit was dismissed. Now, it appears that the appeal is also pending.
37. From the above suit, it appears that it is only an inter se dispute with regard to the control of the school affairs by the parties. Having filed the suit, the petitioner has also filed O.P.No.1 of 2007 to transfer the assets of the school, which was also dismissed for default and restoration application was also dismissed and the same has also reached finality.
38. Writ petition has been filed 16 years after the Society has become defunct to enforce the provisions contained in Sections 44(8), 39 and 41 of the State Act, 1975. As already stated, Section 44(8) came into force on 10.03.1994. The Society was struck off in the year 1992. Therefore the said provision introduced by way of Amendment Act, 1994 cannot be pressed https://www.mhc.tn.gov.in/judis 23/29 W.P.No.8135 of 2008 into service, at this stage, in the absence of any retrospective effect.
39. The judgment relied on by the learned senior counsel appearing for the petitioner in Kunwar Pal Singh Vs. State of U.P. reported in (2007) 5 SCC 85 the Hon'ble Supreme Court has held that it is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefor in the Act.
40. In Asha Vs. PT.B.D.Sharma University of Health Sciences reported in (2012) 7 SCC 389 the Hon'ble Supreme Court in para 17 has held as follows:
"17. It is a settled principle of the law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the above-noted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus, expected https://www.mhc.tn.gov.in/judis 24/29 W.P.No.8135 of 2008 of the respondents to reply these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. "
According to the learned counsel in the counter nothing has been denied, therefore the writ petition has been allowed.
41. In Yadhavar Kalvi Nithi Registered Society Vs. State of Tamil Nadu reported in 2013 (2) CTC 241 a learned Single Judge has held that enquiry under Section 36 can be initiated under four contingencies viz.,
(i) Registrar's own motion; or
(ii) on an application of a majority of the members of the committee of a Registered Society;
or
(iii) on an application of not less than one third of the members of the Society; or
(iv) upon being moved by the District Collector.
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42. In the above judgment, this Court has held that the an enquiry triggered of by complaints from some members has to be treated only as a suo motu enquiry and not as an enquiry in violation of the provisions of Section 36. Absolutely, there is no dispute with regard to the above judgment. The fact remains that much water has flown in this case. The suit has been filed seeking various reliefs and now the writ petition has been filed after a period of 16 years with latches and delay, which has not been explained and only in order to implement the provisions which are incorporated subsequently in the State Act, 1975 i.e., after the Society has been struck off. Therefore, the above judgment will not be helpful to the petitioner in any manner.
43. In State of Orissa Vs. Mamata Mohanty reported in (2011) 3 SCC 436 in paragraph 37 it has been held as follows:
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to https://www.mhc.tn.gov.in/judis 26/29 W.P.No.8135 of 2008 validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside."
44. In Dr.Kashinath G.Jalmi Vs. The Speaker reported in (1993) 2 SCC 703 the Hon'ble Supreme Court has held in paragraph 34 as follows:
"34. In our opinion the exercise of discretion by the Court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality."
45. In Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh reported in (2019) 14 SCC 449 the Hon'ble Supreme Court has held that fraud vitiates every solemn proceedings and no right can be claimed by a fraudsters on the ground of technicalities.
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46. Absolutely, there is no dispute or quarrel over the said proposition. The fact remains that special resolution required under Sections 39 and 41 are prior to the incorporation of Section 44(8) of the State Act, 1975 and the same is for cancellation of the registration of the Society. Now the provisions contained in Sections 39 and 41 also made applicable to struck off the society, such provision can at the most be implemented prospectively and not retrospectively.
47. Considering all the above and also the delay in filing of the writ petition and latches on the part of the petitioner, this writ petition is dismissed. No costs.
09.09.2022 Index : Yes / No kk To
1. The Secretary to Government, Commercial Taxes & Registration Department, Fort St.George, Chennai.
2. The Inspector General of Registration, Department of Registration, Chennai.
3. The District Registrar, Ariyalur.
https://www.mhc.tn.gov.in/judis 28/29 W.P.No.8135 of 2008 N.SATHISH KUMAR, J.
kk PRE DELIVERY ORDER in W.P.No.8135 of 2008 RESERVED ON : 05.09.2022 DELIVERED ON : 09.09.2022 https://www.mhc.tn.gov.in/judis 29/29