IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01.04.2011 Coram: The Honourable Mr.Justice V.DHANAPALAN Writ Petition No.4805 of 2011 and M.P.Nos. 1 and 2 of 2011 R.Nallathambi S/o Ramasamy, Secretary, Kongunattu Vellalar Sangam, No.444, Karayanpudur, Mudalaipattu Post, Namakkal Taluk and District. ... Petitioner Vs 1. The District Registrar (Administration) and Registrar of Societies, Namakkal District, Namakkal. 2. M.Natarajan 3. G.Venkatachalam 4. K.Srinivasan. ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to call for the records in Na.Ka.No.4073/E/2010, dated 17.2.2011 on the file of the first Respondent, quash the same. For Petitioner .. Mr.R.Muthukumarasamy, S.C. for Mr.R.Karthikeyan. For Respondents .. Mr.S.Gopinathan, Addl.Govt. Pleader (W) for R1. Mr.M.S.Krishnan, S.C. for M/s Sarvabhavman Associates for R2 to R4. O R D E R Heard Mr.R.Muthukumarasamy, learned Senior Counsel appearing for M/s.R.Karthikeyan and R.Bharanidharan, learned counsel for the petitioner, Mr.M.S.Krishnan, learned Senior Counsel appearing for the Respondents 2, 3 and 4 and Mr.S.Gopinathan, learned Additional Government Pleader for the first Respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. One Mr.R.Nallathambi claiming to be the Secretary of Kongu Nattu Vellalar Sangam with Registration No.59/1990, has filed this writ petition questioning the jurisdiction and power of the first Respondent in passing the order dated 17.2.2011 in proceedings Na.Ka.No.4073/E/2010 and seeking to quash the same. 3. According to the petitioner, Kongunattu Vellalar Sangam (hereinafter referred to as ‘the Sangam’) was formed as early as in the year 1974 under the Societies Registration (Act 21 of 1860) and registered as No.33/1974 with an object to bring unity within the Kongunattu Vellalar Community residing in Namakkal and to establish educational institutions, hospitals and to work for the betterment of the community people. It was started with a strength of 21 members originally and thereafter slowly enrolled all the community people and had a membership strength of 140 persons in the year 1986 and they claimed that they had issued identity cards for nearly 3984 members, however, failed to properly submit Form VII for enrolling the said members. 3(a). While so, there was another society in Namakkal registered with the first Respondent in the name and style of 'Namakkal Public School Trust' and registered as No.70/1984. Both the above mentioned Kongunattu Vellalar Sangam and the Namakkal Public School Trust was amalgamated and registered under the Tamil Nadu Societies Registration Act, which was accepted by the first Respondent vide order dated 3.5.1990 in Order No.3742/A2/1990 as 'Kongunattu Vellalar Sangam' with the Registration No.59/1990 with 148 members. As per the Bye-laws of the Society, there were to be 31 Executive Committee Members consisting of a President, four Vice- Presidents, a Secretary, four Joint Secretaries, a Treasurer and other Executive Committee Members and they were to be elected in the Annual General Body Meeting called for the said purpose and the 31 Executive Committee Members would thereafter nominate the office bearers amongst themselves and the term of office for the office bearers and the Executive Committee was three years. Last such election of the Sangam was conducted in the year 2006-2007 wherein one P.Sengodan was elected as the President and the petitioner herein was elected as the Secretary and one K.P.R.Periasamy was elected as the Treasurer. It is the further case of the petitioner, that one Swamiyappan and P.S.K.Sengodan were elected as Vice-Presidents and P.K.Venkatachalam, K.Srinivasan, M.Natarajan and V.P.Veerappan were elected as Joint Secretaries. The President P.Sengodan had passed away during the month of October 2008 and one of the Vice-Presidents namely, Swamiyappan was nominated as the President of the Society by virtue of the Resolution passed in the Executive Committee Meeting. 3(b). During September 2010, the term of office of the elected body had come to an end and when the election process was about to be started, certain group of persons in the Executive https://hcservices.ecourts.gov.in/hcservices/ Committee by their Resolution, dated 21.6.2010 had appointed one Natarajan as the President of the Society on the score that the above mentioned Swamiyappan had resigned and also appointed one Srinivasan as the Treasurer in the place of the erstwhile Treasurer K.P.R.Periyasamy. The said Resolution passed in the Executive Committee Meeting was submitted to the first Respondent on 28.6.2010, wherein the first Respondent, by an order dated 29.6.2010 refused to accept the said Resolution holding that the Executive Committee Members of a Society should be elected only in the General Body Meeting and not by way of Resolution passed by the Executive Committee as the same was contrary to Section 15(3) of the Tamil Nadu Societies Registration Act 1975 (hereinafter referred to as 'the Act'). However, the first Respondent, contrary to his own decision and proceedings dated 29.6.2010, passed another proceedings dated 6.7.2010 directing the Executive Committee to submit Form VII in respect of the Resolution dated 21.6.2010 and in the meanwhile, the first Respondent suspended the order dated 29.6.2010. 3(c). While so, the newly elected President had issued an advertisement in the newspaper on 30.7.2010 that the Society was going to conduct a Special General Body Meeting on 6.8.2010 and to the shock and surprise of the petitioner, when the Executive Committee met on 6.8.2010, the said Special General Body Meeting was itself converted into a Annual General Body Meeting, in which Respondents 2 to 4 were nominated as the President, Secretary and Treasurer respectively, apart from other Executive Committee Members also being nominated. In the said Meeting, there were oppositions from various members and ultimately, the Minutes Book was also stolen, for which the petitioner herein had lodged a criminal complaint with the Superintendent of Police, Namakkal and an FIR was registered in Crime No.1439/2010 dated 6.8.2010. In the meantime, Respondents 2 to 4 submitted a new Minutes Book containing Resolutions alleged to have been passed on 10.8.2010, stating that the old Minutes Book was submitted before the District Munsif Court, Namakkal in respect of a civil suit in O.S.No.350/2010 and also confirming the Resolutions passed on 6.8.2010 and nominating the Respondents 2 to 4 as the President, Secretary and Treasurer and other members as Executive Committee Members and submitted the same before the first Respondent, which has not been accepted by him and has not been taken on file as per the endorsement of the first Respondent. 3(d). It is the further case of the petitioner that the alleged General Body Meeting said to have been held on 6.8.2010 itself is not valid, as the same was not called for by issuing notice within the statutory period of 21 days and also without any agenda for election of the Executive Committee Members, besides the Special General Body Meeting as called for in the newspaper advertisement dated 30.7.2010 and it was converted into a General Body Meeting. The said Minutes recorded on 10.8.2010, which was submitted before the first Respondent in Form VII was also not taken on file for all https://hcservices.ecourts.gov.in/hcservices/ the irregularities in conducting the meeting as mentioned above. 3(e). The petitioner claims that he was functioning as the Secretary of the Society as there was no proper elected body to the Society. However, the 3rd and 4th Respondents were trying to interfere with the rights of the petitioner from acting as the Secretary of the Society based upon the Resolution recorded in the new Minutes Book on 10.8.2010 which was submitted to the first Respondent on 30.8.2010. 3(f). That being the position, the petitioner had filed a suit in O.S.No.176 of 2010 on the file of the Principal District Judge, Namakkal, seeking for the relief of permanent injunction restraining the first Respondent from giving effect to the order made in Na.Ka.No.4073/E/dated 6.7.2010 and along with the suit he filed an application for injunction restraining the Respondents herein who were defendants in the suit, from interfering with the rights of the petitioner to act as the Secretary as interim measure and the Respondents had also filed their counter in the said case and the same is pending as on date. 3(g). In the meanwhile, the Respondents 2 to 4 had approached the first Respondent for acting as office bearers and also to operate bank accounts based on the resolution dated 6.8.2010. The first Respondent, also being a party in the civil suit in O.S.No.176 of 2010, without awaiting for the decision of the civil Court, had passed an order on 17.2.2011 permitting Respondents 2 to 4 to take over the affairs of the Society and also to operate the bank accounts of the Society. Thereafter, the Respondents 2 to 4 have filed a suit in O.S.No.90 of 2011 on the file of the Additional District Munsif Court, Namakkal, seeking for the relief of declaration to declare that they are the elected office bearers of the Society. 3(h). The petitioner filed this writ petition challenging the said impugned order passed by the first Respondent dated 17.2.2011, and to restrain the Respondents 2 to 4 to take over the affairs of the society and to operate the bank accounts on the ground that it is arbitrary illegal and opposed to the settled principles of law besides the first Respondent has exceeded his statutory power and has passed the impugned order without jurisdiction. The District Registrar, who is having control over the Society could only exercise powers under Section 34 and cannot grant directions or empower the office bearers to function in a particular manner when the very resolution appointing them as office bearers is being the subject matter of a civil suit before the competent civil court and that the District Registrar will not have power to go into the veracity or validity of the resolution passed by the Society. 4. Respondents 2 to 4 have filed their counter stating that the present writ petition is nothing but abuse of process of law as they have suppressed the material facts and put forward false https://hcservices.ecourts.gov.in/hcservices/ allegations to snatch an interim order from this Court and the petitioner in an earlier occasion had filed a writ petition in W.P.No.17608 of 2010 on the very same allegations and this Court dismissed the said writ petition by an order dated 1.12.2010 and while dismissing the writ petition, this Court has observed that "the controversy raised in the present writ relates to internal affairs of the society and to resolve the same a General Body Meeting was convened in which the petitioner also participated and he was also removed by the society. The learned counsel appearing for the Respondents also fairly submitted that the petitioner has already filed a civil suit challenging his removal from the society". in spite of such an observation about the petitioner no longer being the Secretary, the petitioner has once again filed this writ petition describing himself as the Secretary of 'Kongu Nattu Vellalar Sangam' (hereinafter called the 'Society'). The petitioner has not thought it fit to implead the Society although the impugned order is issued to the second Respondent in his capacity as the President of the Society. 4(i) One V.Samiappan has been elected as the President on 28.10.2008 by the then Executive Committee when the previous President P.Sengodan had died. The said Samiyappan first expressed his desire to resign from the post of President in the month of December 2009 and he was persuaded to remain in the said post, as his tenure was due to end in the month of August 2010. However, once again on 10.1.2010, when the petitioner as the Secretary, had called for an emergent meeting of the Executive Committee to be held on 21.06.2010 to deliberate upon the resignation letter of Samiyappan, the members of the Executive Committee decided to relieve Samiyappan from the post of President as they felt that the said Samiyappan should not be retained in his post against his will. On the very same day, in keeping with bye-law No7, under the heading Executive Committee, the 3rd Respondent was selected as the Vice President and Ravi @ Venkatachalam was selected as the Vice President. The petitioner was also a party to the resolution but however, not only did he refuse to sign the minutes book but he had also taken away the resignation letter submitted by the said Samiyappan with ulterior motive. He first attempted to get this resolution declared invalid by approaching the 1st Respondent. The 1st Respondent, by his proceedings dated 29.6.2010 declared this resolution as invalid. Immediately on coming to know about this order, Respondents 2 to 4 brought to the notice of the 1st Respondent the fact that the Bye-laws of the society permitted selection of office bearers by the Executive Committee. Thereafter, the 1st Respondent, by his order dated 6.7.2010 reversed his earlier order and directed the society to submit Form VII Application. The said direction was also complied with by Respondents 2 to 4. It is this order which has been challenged by the petitioner in the suit O.S.No.176/2010 pending on the file of the Principal District Court, Namakkal. https://hcservices.ecourts.gov.in/hcservices/ 4(ii). The second Respondent had filed a suit in O.S.No.350/2010 on the file of the Additional District Munsif Court, Namakkal against three of the Executive Committee Members and two others allowing allegiance to the petitioner for an injunction restraining them from interfering with his management of the 4th Respondent Society. In the said suit, an interlocutory application in I.A.No.639/2010 was filed seeking an ad interim injunction. The said application after contest was allowed by the District Munsif observing that the order of the 2nd Respondent dated 29.6.2010 had been reversed by him by his order dated 6.7.2010. The learned Judge taking into account the fact that the 2nd Respondent had established prima facie which were well known to the petitioner has been deliberately suppressed by him. 4(iii). The petitioner filed W.P.No.17608 of 2010 for a declaration that the notice dated 27.7.2010 published in 'Kalai Kathir' a Tamil Daily dated 30.7.2010 as illegal and non-est, totally suppressing these facts as well as the injunction granted in favour of the 2nd Respondent. The said writ petition was filed with a false allegation that the notice of the Extra General Body Meeting slated for 6th August 2010 had not been served on the members as per the Bye- laws of the society and only six days prior to the meeting, a publication of the meeting had been made in a Tamil Daily. The petitioner had deliberately suppressed the fact that a notice dated 11.7.2010 had been delivered in person to the members by the Treasurer of the society. Out of the total membership of 85, notices had been served on 60, information delivered to 4, 10 members had expired, 3 had gone abroad, 2 members refused to sign the copy of the notices and 2 others including the petitioner refused to receive the notice. Not stopping with this delivery in person, the 2nd Respondent had issued a reminder letter dated 27.7.2010 and followed it with the publication. The petitioner, to whom the notice had been taken, deliberately suppressed the said notice and filed the writ petition. This Court after a detailed enquiry, dismissed the writ petition by an order dated 1.12.2010. Immediately thereafter, the petitioner describing himself as the Secretary of the society filed the suit in O.S.No.176/2010 on the file of the Principal District Court, Namakkal stating that although the term of the office of the Executive Committee had expired on 16.9.2010, since a committee had not been formed in keeping with the Bye-laws of the society, he continued to administer. He further contended that on 1.12.2010, Respondents 2 to 4 along with 11 others had attempted to interfere in his administration. The suit was filed to declare the order of the 1st Respondent dated 6.7.2010 as null and void and for an injunction restraining the Respondents 2 to 4 and the other defendants from interfering with the administration of the society's properties by the petitioner. The above facts would clearly demonstrate the conduct and the utter lack of bonafide on the part of the petitioner. Having failed to obtain an interim order in the suit in O.S.No.176/2010, the petitioner has come forward with the present https://hcservices.ecourts.gov.in/hcservices/ writ petition on totally untenable grounds and false allegations. 4(iv) The above writ petition is filed challenging the communication of the 1st Respondent dated 17.2.2011 which is nothing but an acknowledgement for the filing of Form VII as contemplated under Rule 17 of the Tamil Nadu Societies Registration Rules. The new Executive Committee elected by the General Body and the Executive Committee from amongst themselves have selected the office bearers. The Extraordinary General Body Meeting held on 6.8.2010 had elected the Executive Committee and in the next Annual General Meeting held on 14.9.2010, the resolutions passed in the Extraordinary General Body Meeting 6.8.2010 were ratified once again. The communication dated 17.2.2011 is simply an acknowledgement of filing and not an order as contended by the petitioner. According to the Respondents, the writ petition filed challenging this acknowledgement is not maintainable. Therefore, they prayed for dismissal of the writ petition on the ground that the facts averred by the petitioner are misleading and baseless. 5. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the petitioner has strenuously contended that under sub-section (1) of Section 36 of the Societies Registration Act, the Registrar may, on his own motion or on the application of a majority of the members of the committee of 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 so by Registrar by order in writing in this behalf to hold, an inquiry into the constitution, working and financial condition of that registered society. 5(a) He would further contend that the power of the Registrar was to enquire into the affairs of the Society only to hold a summary enquiry for its own satisfaction and not to adjudicate upon conflicting claims based upon question of benefits. The said power cannot be construed as the power of appeal under Section 36 of the Act. The Registrar has not been empowered to take upon the conflicted claims of the society based upon the question of fact. Therefore, the decision rendered by the Registrar in permitting the Responds 2 to 4 to take over the affairs of the society and also to operate the bank accounts of the society is without jurisdiction and authority of law when the conflicted issues pending before the civil Court. He would further contend that it is for the Registrar to go into the recording of the Form VII placed before him. On the contrary, he has exceeded his power by passing an order permitting the Respondents 2 to 4 to take over the affairs of the society and to operate the bank accounts. To substantiate his arguments the learned senior counsel appearing for the petitioner has relied on the following decisions:- (i). A decision rendered by the Full Bench of this Court reported in 2005(2) CTC 161 in the case of C.M.S.Evangelical Suvi https://hcservices.ecourts.gov.in/hcservices/ David Memorial Higher Secondary School vs. The District Registrar, Cheranmahadevi. In para 13 to 20 the Full Bench of this Court has held as follows:- "13. In terms of sub-rule (1) of Rule 17, the registered society shall file with the Registrar within one month from the date of registration of the society, a copy of the register of members maintained by the society. In case any change among the members of the society or the committee in terms of sub-rule (2) of Rule 17, notice of such change shall be filed in Form No.VII within three months from the date of such change to the Registrar. The said notice of change shall be accompanied by the resolution of the meeting effecting such change. 14. Form VII contains the name of the society, date of registration, the year of registration and the details of change. Filing of the said Form is in order to ensure that such change in the committee or the members is entered in the register maintained in the office of the Registrar as maintenance of such record is compulsory. 15. for the purpose of such registration when Form No.VII is filed, the Registrar shall necessarily satisfy himself as to whether the particulars furnished in Form No.VII are true and correct. 16. Under sub-section(1) of Section 36, 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 inquiry into the constitution, working and financial condition of that registered society. It is argued that in view of the word "into the constitution" employed in Section 36, the power of the Registrar to inquire into the affairs of the society shall include the power to inquire into the election of members. It is further argued that in terms of sub-section (9) of Section 36 of the Act, the power of the Registrar to enquire into the affairs of Section 36 of the Act, the power of the Registrar to enquire into the affairs of the society shall also include such direction to hold fresh election as well. https://hcservices.ecourts.gov.in/hcservices/ 17. A conspicuous reading of the above mentioned provisions show that the Act is intended to regulate the affairs of the society in accordance with the provisions contained therein and the rules made thereunder and that the registration is made compulsory on certain contingency and for its enforcement the provisions confer only the administrative power of the Registrar to ensure that the registered society to function strictly in accordance with the provisions of the Act or the Rules made thereunder, more particularly for maintenance of accounts for audit purpose; framing of bye-laws in conformity with the object of the Society for which it is framed and registered; in respect of application of funds of the registered society, conduct of Annual General Meetings and extraordinary general meeting and amalgamation and division of registered societies. The Registrar has power to direct the registered society to furnish in writing such information or explanation in respect of any document which the registered society is required to file with him. 18. The power of Registrar to enquire into the affairs of the society is only to hold a summary inquiry for his own satisfaction. The said power cannot be construed as the power of appeal. Under Section 36, the Registrar has not been empowered to adjudicate upon the conflicting claims to represent the society based upon question of fact. A plain reading of Section 36 shows that the Registrar could look only the provisions of the Act and the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form No.VII in order to effect change in the register. The power of the Registrar to call for information and explanation under Section 34 does not contemplate any power to examine witnesses or to allow opportunity for cross examination of witnesses. The power in our view is incidental and it is only for the purpose of maintaining correct records. As the power to conduct inquiry is only limited in order to find out whether constitution of members are valid, the inquiry is limited only for the purpose of making entries in the register. However, the exercise of power must not be arbitrary as the orders passed or directions issued by the Registrar is amenable to challenge in the Writ Jurisdiction. 19. In this context it could also be kept in mind the intention of the Legislature not to confer a power of suppression of the Committee on the Registrar as by https://hcservices.ecourts.gov.in/hcservices/ insertion of Tamil Nadu Act 16 of 1994, such power is vested only in the Government and even when the Registrar is satisfied after enquiry under Section 36 that the society which has contravened