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Judgment
K. Chandru, J.—Heard both sides. The petitioner has filed the present writ petition, seeking for a direction to the respondents 1 to 3 to
initiate necessary and appropriate proceedings against the fourth respondent Society, i.e. Arcot Lutheran Church Society, by conducting an
inspection and enquiry into the affairs of the Society and also to appoint a Special Officer to administer the affairs of the society until it is revived.
When the matter came up on 29.10.2009, the petitioner was directed to give private notice to respondents 4 to 10. On behalf of fourth
respondent, a counter affidavit, dated 30.11.2009 was filed together with a typed set of papers.
The petitioner claims to be the member of R-4 Society. According to him, the Society was registered under the Tamil Nadu Societies
Registration Act, 1975. The by-laws of the society provides for conducting elections and procedures for conduct of elections. It is stated that the
society did not submit proper annual report to the Registrar of Societies. Therefore, the District Registrar, Cuddalore initiated action u/s 44(3) of
the Societies Act and forwarded his report to the State Government. It was also stated that the Society was declared to be defunct by a
notification issued in the Tamil Nadu Government Gazette on 5.9.2001 in terms of Section 44 of the Societies Act. Therefore, this led to filing of
some writ petitions before this Court. There was maladministration and an attempt to alienate the properties of the society was also done. Various
acts and omissions of the office bearers were also registered. It is under these circumstances, power u/s 36 of the Societies Act was sought to be
pressed into service.
Though when the matter came up on 08.12.2009, all the connected writ petitions were directed to be posted, it was subsequently informed that
all these matters have already been disposed of by this Court.
On behalf of the official respondents, a communication sent by the second respondent Inspector General of Registration, dated 19.10.2005 to
the members of the society was produced. In that communication, the second respondent had listed out various writ petitions, which were filed
before this Court and finally, stated that since the society has been functioning as per the order of this Court, various grievances made by the
members can be taken up only after disposal of those writ petitions. Therefore, it was submitted that the petitioner has come with one more writ
petition, which need not be entertained.
On behalf of fourth respondent Society, in their counter affidavit, dated 30.11.2009, it was stated that election for the society was conducted
pursuant to the order passed by this Court, dated 29.8.2002 and under the supervision of an Advocate Commissioner, elections for the remaining
period from 2001 to 2004 was conducted after following the procedures. After election was over, one Edison filed W.P. No. 15297 of 2003
before this Court restraining the office bearers from taking charge. Subsequently, on steps being taken, the order of this Court granting injunction
was modified and the elected office bearers were permitted to carry on the functions of the society. Finally, W.P. No. 15297 of 2003 came to be
dismissed for want of prosecution on 8.6.2007. It was stated that the society is functioning in terms of its by-laws. The properties and finance are
controlled by the recommending body. It is the Church Board ultimately will have to decide the sale of the properties. The allegation of malpractice
was sought to be denied.
In support of the stand of the respondents, a judgment of this Court in A. Samiappan v. District Registrar, Office of the Registrar of Societies,
Chennai and Ors. reported in 2007 (4) MLJ 421 was referred to for the proposition that for initiating action u/s 36 of the Societies Act, a
requisition will have to be given by the majority of members of the Committee or 1/3rd of the members of the Society should move an application
for conduction an enquiry. It was stated that there was no such requisition given.
Similarly, another judgment of this Court in Vallivalam Desikar Polytechnic Educational Society v. The District Registrar (Society Registration)
and Inspector General of Registration reported in Vallivalam Desikar Polytechnic Educational Society Vs. The District Registrar (Society
Registration) and Inspector General of Registration, was also referred to for the purpose of contending that for issuing notification u/s 44(4),
proper procedure will have to be followed. Unless such procedures are taken, one cannot hold that the society is automatically defunct.
Reliance was also placed upon the judgment of this Court in respect of the very same society in W.P. Nos. 22431 and 23281 of 2004, dated
24.09.2004. In that case, a writ of declaration declaring elections conducted to Church Board of the society on 24.7.2004 was null and void, was
filed by two members of the society. This Court in its final order held that the election officer was entitled to conduct election and the election held
was valid and the writ petitions are not maintainable since such writ petitions will not lie against private society.
A reference was also made to a division bench judgment of this Court presided by P.K. Misra, J. (as he then was) in The Music Academy Vs.
Inspector General of Registration, District Registrar of Audit and Enquiry Officer, Chennai Central and R. Parthasarathy, . In that case, this Court
went into the question of Section 34-A and the appointment of the Special Officer. It was held that the question of the society becoming defunct
will not arise automatically u/s 44, unless proper steps are taken by the department.
A further reliance was also placed upon the judgment of the Supreme Court in I. Nelson and Another Vs. Kallayam Pastorate and Others, . In
paragraphs 16, 18 and 19, the Supreme Court observed as follows:
We have noticed hereinbefore some of the provisions of the 1975 Act. It, undoubtedly, is a complete code. It not only provides for the mode
and manner in which registration of a society is to be cancelled but also for winding up of a society and removal of a defunct registered society
from the registers maintained by the Inspector General of Registration. A society need not necessarily be held to have become defunct only
because certain statutory provisions have not been complied with by it.
....
There is, therefore, no reason as to why the elected members should not be allowed to carry on the activities of the society wherefor they were
duly elected. We may, however, hasten to add that when we say so, we do not intend to pronounce on the validity or otherwise of the elections
held. If any application has been filed by a person aggrieved for setting aside an election, the same undoubtedly will have to be disposed of in
accordance with law.
But, for the reasons stated hereinbefore, in our opinion, the High Court in the pending suit could not have done so. It should have relegated the
parties to take recourse to such remedies as are available in law for questioning the validity of the election before the appropriate forum(s).
In the light of the above, the petitioner has not made out any case to issue any order especially in view of the fact that the subject matter of the
writ petition is already covered by several orders passed by this Court. The petitioner has no locus standi to raise once again the issues which were
raised already. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous
petition stands closed.