H. Shanker Shetty vs The District Registrar of Societies and Others

Ashok B. Hinchigeri, J.—I have taken up this matter for final disposal with the consent of the learned advocates appearing for the parties.

The petitioner, who is a member of the second respondent Sangha has raised the challenge to the first respondent''s order, dated 26.6.2013 (Annexure-U) resisting the amendment to the said Sangha''s bye-laws. He has also sought a writ of mandamus to the first respondent to hold and conduct the enquiry, in accordance with law, pursuant to the notice, dated 29.5.2013 (Annexure-P) issued by the respondent No. 1.

Sri V.S. Naik, the learned counsel for the petitioner submits that on 13.6.2013, the first respondent directed that the copies of the documents, filed by the respondent No. 2, be furnished to the petitioner. The petitioner is not given the copies of the said documents. Without giving an opportunity to the petitioner to offer his remarks on the documents, the enquiry is prematurely concluded by the respondent No. 1.

Sri Naik submits that the respondent No. 1 has observed that the proceedings of the respondent No. 2 are not in accordance with law. But without invalidating them, the respondent No. 1 is content advising the respondent No. 2 to act in accordance with the bye-laws before proposing any amendment in future.

The learned counsel submits that the respondent No. 1 is not completing the proceedings on the complaint, dated 25.4.2013 (Annexure-N) filed by the petitioner. He submits that the host of the documents disclose that all is not well with the second respondent Society. He submits that under Section 10(2) of the Karnataka Societies Registration Act, 1960 (''the said Act'' for short), the respondent No. 1 has to satisfy himself that the amendment is in accordance with the provisions of the said Act and the Rules framed thereunder.

Sri Naik relies on the Division Bench''s judgment of this Court in the case of BOWRING INSTITUTE v. THE DISTRICT REGISTRAR OF SOCIETIES passed in W.A. No. 2044/2008, dated 19.12.2008. He read out the relevant portion of paragraph No. 14 of the said decision, which reads as follows:

"14. There is a fallacy underlying the argument advanced by the learned counsel for the petitioner. Neither the contextual interpretation nor any canon of construction would countenance the argument of the learned counsel. The argument of the learned counsel ignores the crucial fact that suo-motu power conferred by the first limb of sub-section can come into play independent of the power confided to the Registrar in two specific situations. The three relevant clauses of Section 25(1) have to be read harmoniously and to effectuate the objective of the provision. The ambit and plenitude of the power vested in the Registrar to act on his own motion cannot be curtailed and crippled by any ''a apriori'' notion that it stands excluded where the members less than the requisite percentage become complainants. There is no taboo against a member or members less than 1/3rd approaching the Registrar with a petition and the Registrar taking cognizance of the same and proceeding to make an enquiry on the basis of information laid before him. As already observed, the information forming the basis for exercise of suo-motu power may come from any source including a single member of the society. The exercise of such power by the Registrar cannot be controlled by the fact that the complaint is made by less than 1/3rd of the members. If the number of members petitioning to the Registrar is 1/3rd or more, as already discussed, the Registrar is bound and obliged to initiate an enquiry. He has no option but to act and direct the enquiry. But, if the number is less, the Registrar can very well refrain from holding the enquiry, if he feels that the enquiry is not warranted................"

Smt. B.P. Radha, the learned High Court Government Pleader appearing for the respondent No. 1 submits that the petitioner is not justified in assailing the order, dated 24.6.2013 (Annexure-S) without challenging the same. She submits that the issuance of the registration order, dated 26.6.2013 (Annexure-U) is in accordance with law. She relies on this Court''s decision in the case of Mr. Brijesh Patel Vs. State of Karnataka and Others, to advance the submission that the complaint filed by a member of the Society is not entertainable. Under Section 25 of the said Act, the Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than 1/3rd of the members of the Society hold the enquiry, etc.

Sri Jayakumar S. Patil, the learned Senior Advocate appearing for Sri Devi Prasad Shetty for the respondent No. 2 submits that the advice given by the respondent No. 1 is taken by the respondent No. 2 in its proper perspective. The advice is not in the context of registering the amendment for which the resolution was passed by convening the special general body meeting on 31.3.2013. He submits that the resolution is passed by the requisite majority. Once the resolution is passed, as per the procedure prescribed by the second respondent''s bye-laws, the respondent No. 1 has to only register the same. Under Section 10(2) of the said Act, no adjudicatory power is conferred on the respondent No. 1.

The learned Senior Counsel submits that the respondent No. 2 has been running a school. A charitable person offered to donate the funds. A sub-committee was constituted with the donor as the Chairman. The advice of the respondent No. 1 is that such a sub-committee can be constituted only when the bye-laws provide for the same.

He submits that the petitioner''s complaint/application is already rejected by the respondent No. 1, as is evident from the endorsement, dated 10.7.2013 (Annexure-V).

The submissions of the learned counsel have received my thoughtful consideration. The first question that arises for my consideration is whether the enquiry proceedings are concluded without affording adequate opportunities to the petitioner. My emphatic answer is in the negative. The order sheet, dated 13.6.2013 duly signed by the petitioner states that the matter is reserved for orders. If the petitioner wanted to offer further remarks or file further version, he ought to have requested the respondent No. 1 to adjourn the matter for further hearing. Having acquiesced in the order posting the matter for passing the final decision, he cannot complain of the lack of opportunities.

The next question that falls for my consideration is whether the petitioner is entitled to have the enquiry held by the first respondent based on his complaint. That his complaint is not being acted upon by the first respondent, as 1/3rd of the members have not complained, is the endorsement, dated 10.7.2013 (Annexure-V) issued by the respondent No. 1. For the reasons best known to the petitioner, the said endorsement is not challenged. Be it as it may, the plain reading of the provisions contained under Section 25 of the said Act reveals that the Registrar may act on his own motion or on the application of the majority of the members of the governing body or of not less than 1/3rd of the members of the Society for the purpose of holding the enquiry.

In the instant case, admittedly neither the majority of the members of the governing body nor 1/3rd of the members of the Society have filed any complaint or application. In such a situation, it is not obligatory or mandatory for the Registrar to hold the enquiry. If the requisite number of persons have not complained, then the Registrar can only exercise his suo motu power, if the contents of the application/complaint so warrant.

That the order, dated 26.6.2013 is slightly ambiguous or that it leads to two interpretations are no grounds for interfering in the impugned order.

I dismiss this petition. However, it is made clear that it is always open to the petitioner to invoke Section 25 of the said Act and make the application with not less than 1/3rd of the members of the Society or majority of the members of the governing body. If one such application/complaint is filed, the Registrar is bound to hold the enquiry. Otherwise, that is if the petitioner alone files the complaint or representation, the exercise of suo moto power is still permissible, but it is discretionary. The legal position is unequivocally stated in the case of BOWRING INSTITUTE (SUPRA).

No order as to costs.