Nadar Mahajana Sangam S. Vellaichamy Nadar College vs District Registrar (Administration) (Societies) and Others

Abdul Hadi, J.—Though the writ miscellaneous petitions relating to these three writ petitions, which are connected have alone been posted

today for disposal, by consent of all parties, I heard all the counsel on the main writ petitions themselves and accordingly I am disposing of the main

writ petitions.

No doubt, disposal of these main writ petitions will not automatically dispose of one writ miscellaneous petition posted in the list, that is W.M.P.

No. 15625 of 1994 in W.P. No. 9432 of 1994 since the said W.M.P. seeks punishment for perjury said to have been committed by the 1st

respondent in the said writ petition. Hence the said W.M.P. will have to be posted separately later.

All these writ petitions are by Nadar Mahajana Sangam S.Vellaichamy Nadar College, at Nagamalai Pudukottai, Madurai. The said Sangam is

a registered society under the Tamil Nadu Societies Registration Act, 1975 (hereinafter referred to as ''the Act'') and the Society is represented by

its Secretary S.V.S. Sundaramurthy. In all the three writ petitions, respondents 1 to 5 are same. In W.P. Nos. 8056 and 8909 of 1994 there are

only five respondents while in W.P. No. 9342 of 1994 there are two more respondents, viz., respondents 6 and 7. Though these respondents also

have been served, it-appears that they have not entered appearance. The other five respondents are respectively represented by their counsel.

4.W.P. No. 8056 of l994 seeks to quash the order of the 1st respondent dated 22.4.1994. W.P. No. 8909 of 1994 also seeks to quash another

order of the 1st respondent passed on the same date, viz., 22.4.1994. The text of the two orders, both dated 22.4.1994 is virtually same. As per

the said text, the 1st respondent directs the 5th respondent, who is the Principal of the abovesaid college to hold election to the Managing

Committee of the abovesaid Sangam after convening the Special General Body by giving one month''s notice. The said order is purported to have

been made u/s 28 of the Act. For giving the abovesaid direction to the 5th respondent for holding the election, the 1st respondent gives only one

reason, viz., 137 members of the abovesaid Society including respondents 3 and 4 have requested the 1st respondent to hold election for the

Managing Committee for the two year period from 1.4.1994 to 31.3.1996 after convening the Special General Body of the Society. Hence, the

abovesaid direction was given to the 5th respondent. Therefore, the 1st respondent directs the 5th respondent to convene the Special General

Body, after giving the members one month''s notice and conduct the election for the abovesaid Managing Committee. No doubt, it is also stated in

the abovesaid order that since there are differences of opinion between two parties (that is, between the writ petitioner on the one hand and

respondents 3 and 4 on the other hand), 5th respondent should hold elections smoothly and report to the 1st respondent.

Then in W.P. No. 9342 of 1994, the prayer is to quash the order of the 1st respondent dated 11.5.1994. The said order is purported to have

been passed u/s 36(9) of the Act. It says that the 1st respondent''s office has not received any report regarding the elections held for the Managing

Committee of the Society right from 1986, but that on 19.12.1993 both the rival groups claimed to have convened General Body of the Society

and conducted election for the Managing Committee and thereby according to the rival groups, two different Managing Committees have been

elected. The said order further proceeds to say that there was no possibility for the General Body to elect two different Managing Committees on

the same day. Therefore, according to the said order, there is necessity for convening the General Body again and elect a new Managing

Committee. It also proceeds to say that such a request was made by the above referred to 137 members and that is why the earlier order dated

22.4.1994 was passed directing the 5th respondent to hold the election. This order concludes that till the said election is conducted and completed

pursuant to the abovesaid direction dated 22.4.1994 there is necessity for an interim Managing Committee. Hence the said order appointed the 5th

respondent himself as the sole one man ad hoc committee of management until a new Managing Committee is elected pursuant to the earlier

direction dated 22.4.1994.

Now, the submission, before me by the learned Counsel for the petitioner is that the abovesaid three impugned orders by the 1st respondent are

without jurisdiction. According to him, neither Section 28 authorises the 1st respondent to pass the above referred to two impugned orders dated

22.4.1994, nor the above referred to Section 36(9) authorities him to pass the above referred to impugned order dated 11.5.1994. In this context

apart from drawing attention to the abovesaid relevant sections learned Counsel also drew my attention to Section 34-A of the Act.

On the other hand, learned Counsel for respondents 3 and 4 argues that the 1st respondent has got jurisdiction to pass the abovesaid impugned

orders. The said counsel also argues that even assuming that the abovesaid impugned orders dated 22.4.1994 could not be characterised as an

order u/s 28, it should also be treated as an order passed u/s 36(9).

Learned counsel for the 5th respondent, the Principal of the College, represents that as Principal of the College, though the fifth respondent

would prefer to remain neutral between the rival groups he would order to assist the court, submit that the interpretation sought to be put by

learned Counsel for respondents 3 and 4 on Section 36(9) of the Act is correct.

I have considered the rival submissions. The whole question depends on the interpretation to be put to the latter portion of Section 36(9) of the

Act, (which has been introduced by a very recent amendment which came into force from 1.4.1994) and more particularly in the light of Section

34-A, which was also simultaneously introduced with effect from the same date 1.4.1994.

Initially, I may dispose of the other simple question as to whether Section 28 of the Act would empower the 1st respondent to pass the above

referred to impugned orders, both dated 22.4.1994. Sub-sections (1)and(2) of Section 28 of the Act, which are alone relevant, run as follows:

(1) The Committee may at any time call an extraordinary general meeting of the registered society and shall call such a meeting within such period

as may be prescribed after receipt of a requisition in writing from such number of members of proportion of the total number of members as may

be specified in the by-laws of the registered society.

(2) If an extraordinary general meeting is not called in accordance with such requisition, the requisitionists shall have power to call such meeting

themselves.

The committee referred to in Section 28(1) is the governing body of the registered society as per Section 2(a) of the Act. So as per Section 28(1),

the said committee alone can call an extraordinary general body meeting of the society after receipt of the prescribed requisition in writing

mentioned in the said sub-section. The 1st respondent has no power u/s 28 to appoint 5th respondent or any person to convene the said meeting

even though there is the prescribed requisition. Therefore, it is clear that the impugned orders dated 22.4.1994 are certainly not within the

jurisdiction of the 1st respondent pursuant to Section 28. No doubt, as stated above, the contention of the learned Counsel for respondents 3 and

4 is that the abovesaid impugned orders dated 22.4.1994 should be taken as orders passed u/s 36(9) itself, though the said orders are said to be

orders u/s 28.

In this context, the relevant provisions u/s 36 may be seen. Sub-sections (1), (2) and (9) of Section 36 of the Act runs as follows:

(1) The Registrar may, of his own motion or on the application of a majority of the members of the committee of a registered society or on the

application of not less than one-third of the members of that registered society, or, if so moved by the District Collector, hold, or direct some

person authorised by the Registrar by order in writing in this behalf to hold an enquiry into the constitution, working and financial condition of that

registered society.

(2) An application to the Registrar under Sub-sec(1) shall be supported by such evidence as the Registrar may require for the purpose of showing

that the applicants have good reason for applying for an enquiry.

(9) The result of the inquiry shall be communicated to the registered society and to the applicants, if any, and if the Registrar is satisfied that the

result of the inquiry does not warrant action u/s 37 he may issue such direction to the registered society, or any member of the registered society as

the Registrar may deem fit.

Thus, it is found that Section 36 gives the power to the Registrar to enquire into the affairs of a registered society in regard to its constitution,

working and financial condition. Section 36(2) specifically provides that an application to the Registrar u/s 36(1) shall be supported by such

evidence as the Registrar may require for the purpose of showing that the applicants have good reasons for applying for an enquiry. But in the

present case, before passing the above referred to impugned orders dated 22.4.1994 strictly speaking no application was received by the 1st

respondent, requesting to hold any such enquiry contemplated u/s 36(1). All that could be gathered from the said impugned orders is that 137

members of the society requested the 1st respondent to hold fresh election to the Managing Committee of the petitioner-Sangam after appointing

an observer or election officer to hold the election. Immediately on receipt of such a requisition from the abovesaid 137 members staightaway, the

1st respondent has chosen to pass the abovesaid impugned orders dated 22.4.1994. He purports to pass the said orders u/s 28, which does not at

all give him any such power to pass such an order.

11-A. The impugned orders dated 22.4.1994 cannot also be taken as order u/s 36(9) also. First of all, he has not held any enquiry contemplated

u/s 36 nor it appears any evidence was let in by the abovesaid requisitionists for the purpose of showing that they have good reasons for applying

for an enquiry u/s 36. Therefore, necessarily the abovesaid orders, both dated 22.4.1994 have to be quashed.

Coming to the above referred to impugned order dated 11.5.1994 it has to be seen whether it could be sustained u/s 36(9) of the Act. The

latter part of Section 36(9) says that ""if the Registrar is satisfied that the result of the inquiry does not warrant action u/s 37, he may issue such

direction to the registered society, or any member of the registered society, as the Registrar may deem fit. Section 37 provides for cancellation of

registration of a society. It says:

When an inquiry has been held u/s 36 the Registrar may, if he is satisfied,

(a) that the registered society has contravened any of the provisions of this act or the rules made thereunder: or

(b) that the registered society is insolvent, or must necessarily become so: or

(c) that the business of any such registered society is conducted fraudulently or not in accordance with the by-laws or the objects specified in the

memorandum filed with the Registrar u/s 6, after giving in such manner, as he thinks fit, previous notice in writing to the registered society,

specifying briefly the grounds of the proposed cancellation and after giving an opportunity to the registered society to show cause why the

cancellation should not be made, cancel the registration of the registered society....

In interpreting the latter part of Section 36(9) of the Act, the contention of the learned Counsel for the petitioner is that if as a result of the

enquiry, the Registrar finds that the case does not fall under Clauses (a), (b) or (c) of Section 37, he cannot think of cancelling the registration of

the society. He may however give suitable directions to the society to correct any irregularities committed by the society. According to the said

Counsel this latter part of Section 36(9) cannot at all authorise the 1st respondent to appoint an ad hoc committee for managing the society or to

give any direction to hold fresh election to the Managing Committee of the Society. According to the said learned Counsel when there is a dispute

as regards the two rival elections which are said to have taken place on 19.12.1993 and the said dispute is the subject-matter of litigation in civil

suits O.S. No. 361 of 1994 and O.S. No. 369 of 1994, the 1st respondent, who admittedly has no authority to decide the rival contentions

regarding the abovesaid elections that took place on 19.12.1993, has no power to straightaway appoint on ad hoc committee consisting of 5th

respondent alone to manage the society or to direct him to hold fresh election for electing the new management. In this connection only, learned

Counsel drew my attention to Section 34-A, which was also introduced with effect from the same date, viz., 1.4.1994. It provides for

supersession of the Managing Committee of the registered society. Such power of suppression u/s 34-A of the Act is given to the Government if in

its opinion, ""(i) the committee of any registered society is not functioning properly, or (ii) the affairs of any registered society are mismanaged, or

(iii) the registered society''s activities are not in furtherance of the objects of the society, or (iv) the committee of any registered society has

contravened any of the provisions of this Act or the rules made thereunder, or wilfully disobeys or wilfully fails to comply with any lawful order or

direction issued under the provisions of this Act or the rules made thereunder."" According to learned Counsel, such a power has been given only to

the Government and Section 34-A cannot be interpreted in such a way that similar power is also given to the Registrar.

On the other hand, the counter argument by the abovesaid respondents is that the power given u/s 36(9) and Section 34-A of the Act are

independent powers and simply because Government is given power u/s 34-A to supersede a committee, it cannot be said that the Registrar

cannot exercise a similar power u/s 36(9) of the Act.

14-A. On bestowing serious thoughts over the abovesaid rival contentions, I see great force in the argument of the learned Counsel for the

petitioner. I am of the view that the interpretation, which the said learned Counsel is seeking to put on the abovesaid latter part of Section 36(9) of

the Act, is the correct one, particularly taking into account what is contained in Section 34-A whereby supersession power is given only to the

Government. The 1st respondent, when he comes to know that rival elections have taken place, as stated above on the same day, he cannot

simply brush aside the correctness or otherwise of both the elections and direct to hold a fresh election, when it is clear that he cannot himself try

the abovesaid dispute as to which of two elections is true and valid, and that the said question has to be gone into only by a civil court. Though it

appears that rival groups have not gone to court to establish their rival claims regarding the said elections that took place on 19.12.1993, some

third parties have already agitated the said question by filing two different suits. In such a situation, the 1st respondent has no jurisdiction to simply

brush aside the elections alleged to have taken place on 19.12.1993 and direct to hold a fresh election or to appoint suo motu a single man

committee of management as has been done in the present case. I am of the view that such direction by the 1st respondent is not contemplated at

all in the latter part of the abovesaid Section 36(9). By no stretch of imagination such an. interpretation could be put to the said latter part. That

apart, even according to the said latter part, direction, if at all, could be given by the 1st respondent only to the registered society or any member

of the registered society."" In the present case, the direction has been given to 5th respondent, the principal of the college, who is not a member of

the registered society. The said principal may be ex officio member of the Managing Committee of the society. but admittedly, he is not a member

of the society. So, even in this regard, the impugned orders cannot be sustained.

That apart, after the first two impugned orders dated 22.4.1994, the 3rd impugned order has been passed by the 1st respondent suo motu on

11.5.1994. If really the original impugned orders dated 22.4.1994 are also to be construed as orders passed u/s 36(9) (as contended by counsel

for respondents) he having once passed the order on 22.4.1994, cannot once again pass another order some days later and that too, suo motu,

without any fresh move by the above referred to 137 requisitionists. If really he had completed the enquiry on or before 22.4.1994 and had made

known the result of his enquiry by passing the order dated 22.4.1994, he cannot himself pass another order after some days, and that too, without

holding fresh enquiry.

Reliance also was sought to be placed on Indian Overseas Bank v. R. Sathyamurthi, 1994 W.L.R. 108. But that decision has no application at

all to the present case.

In the light of what is stated above, the 1st respondent has no power u/s 36(9) to order a fresh election to the Managing Committee of the

society in question or to appoint the 5th respondent as the sole ad hoc Managing Committee till the said fresh election is held. Accordingly, I hold

that the 1st respondent has no jurisdiction to pass the above referred to impugned order dated 11.5.1994 also.

In the result, all the writ petitions are allowed and the impugned orders are quashed as prayed for. However, in the circumstances of the case,

there will be no order as to costs.