HIGH COURT OF ORISSA: CUTTACK W.P.(C) No. 13620 of 2009 In the matter of an application under Article 226 of the Constitution of India. ---------- M/s. Rourkela Technical Educational Society, A/5, Commercial Estate, Area 7/8, Rourkela-769004, represented through its Secretary Sri Pravat Mohapatra and others …… Petitioners -Vrs- Collector-Cum-District Magistrate, Sundargarh and others ..…. Opp. parties For Petitioners : Mr. A.K. Parija, Sr. Advocate, M/s. S.P. Sarangi, B.C. Mohanty, P.P. Mohanty, P.K. Das, D.K. Das, A. Pattnaik & B.P. Das. For Opp. Parties : Mr. Kousik Ananda Guru, (for Caveator) Mr. R.K. Rath, Sr. Advocate (for opp.party No.5) Dr. Tahali Charan Mohanty & M/s. S.K. Das, D.Pati & S.K. Mishra (for opp.party No.6) Mr. B.P. Mohapatra, K.P. Mishra P.K. Mohanty M/s. M. Barma & S. Das (Intervenor) Mr. R.K. Mohapatra, GA (for opp.party Nos.1 to 4) ----------- P R E S E N T: THE HON’BLE THE CHIEF JUSTICE V. GOPALA GOWDA AND THE HON’BLE MR. JUSTICE B.N. MAHAPATRA ----------------------------------------------------------------------------------------------- Date of Judgment: 17.05.2011 ----------------------------------------------------------------------------------------------- 2 B.N. MAHAPATRA, J. In this writ petition challenge has been made to the order dated 14.07.2009 (Annexure-18) and order dated 25.08.2009 (Annexure-19) passed by opposite party no.2-Additional District Magistrate-Cum-Additional Registrar of Societies, Sundargarh. Under Annexure-18, opposite party No.2 has restored the membership of all the living members who constituted the Rourkela Technical Educational Society (in short, “Society”) in the year 1984- 85 vide Registration No.SGD-388/1984-85. Under Annexure-19 opposite party no.2 has approved the meeting of the Governing Body of the Society as per the proposal received from Sri Ramendra Kumar Pujari and others, but disapproved the resolution for removal of Sri P.K. Mohapatra from the primary membership of the Society on the ground that the allegations levelled against him require proper enquiry. The petitioners also seek for a declaratory relief that opposite party no.5- Sri R.K. Pujari, who is no longer the President of the Society as well as opposite party No.6-Sri Pitabash Mishra, an outsider, be permanently restrained from acting as President and Secretary of the Society respectively. Further relief sought for by the petitioners is to declare petitioner no.1-Society constituted under resolution dated 9.6.2009 (Annexure-9) is valid and lawful. 2. The case of the petitioners in a nutshell is that petitioner no.1 is a Society under the provisions of the Societies Registration Act, 1860 (in short, ‘Act’) vide Registration No. SGD-388/1984-85. The purpose of the Society is to establish and carry on the activities for advancement of learning and diffusing the knowledge of education on modern science and technology as well as to 3 produce young technocrats for the benefit of the country and to provide different systems of technical education. Petitioner no.1-Society framed a set of bye-laws (Annexure-1), which were duly approved by the members of the Governing Body of the petitioner-Society, and the same were duly registered with the Registrar of Societies. Since 1984 the affairs of the petitioner-Society were running under the Presidentship of Sri R.K. Pujari and Sri Pravat Mohapatra-petitioner no.2 as Secretary of the Society. In the year 1984, there were 12 members in the petitioner-Society. According to the petitioners, since 3 members expired and another member namely, P.N. Kapoor was not attending the meeting of the Society since 1990, they ceased to be the members of the Society and the remaining 8 members constituted both the General Body as well as Governing Body of the Society. On 10.5.1998 under Annexure-2, the Governing Body resolved that since Sri P.C. Panigrahi and P.K. Pujari were not attending the meeting of the Society they would cease to be the members of the Society. The Governing Body of the Society also unanimously resolved that another member, namely, Sri Sunil Mohapatra should not continue as a member of the Society since he was involved in irregular financial activity which was detrimental to the interest of the Society. Thus, the total number of the members came down to 5, who constituted the Governing Body. On 27.4.2001, the Governing Body of the Society resolved to amend the bye-laws of the Society. The said decision was confirmed by a resolution dated 13.05.2001 (Annexure-4). The said amended bye-law (Annexure-3) was submitted for approval of opposite party no.2-Additional 4 District Magistrate, Sundargarh as required under law. By that time two members, namely, Dr. K.K. Prajapati and Sri G.S. Agarawal were inducted as members of the Society. On 7.10.2001 a meeting of the Governing Body of the petitioner no.1-Society unanimously resolved under Annexure-5 to remove Sri Pitabas Mishra, who was a member of the Society, due to his activities which were not conducive to the interest of the Society. As the members of the Society came down for a smooth functioning of the Society, seven more members were inducted into membership of the Society. 3. Subsequently, a rift took place between the members of the petitioner no.1-Society and opp. party no.5-R.K.Pujari with regard to payments made by the Bank to the contractor against construction work of a building of the Society. On 3.6.2009, the majority of the Governing Body members passed resolution (Annexure-6) removing R.K. Pujari from the post of President and same was communicated to Sri Pujari in the said meeting. It was also decided that Mr. Nabin Chakraborty, who is a regular member of the petitioner- Society, is to act as pro-term President of petitioner no.1-Society till a regular President is elected. On receipt of the resolution dated 3.6.2009 (Annexure-6), opposite party no.5-R.K. Pujari on the same day wrote a letter to opposite party No.6-Sri Pitabas Mishra, an outsider to act as Secretary of the petitioner- Society. Sri Pujari also wrote another letter under Annexure-8 to Pravat Mohapatra suspending him from the post of Secretary of the petitioner-Society on some allegations and restraining him from making any transaction and to hand over all the charges to Sri Pitabasa Mishra. On 9.6.2009, a meeting of 5 the Governing Body/General Body of the petitioner–Society was held and the removal of R.K. Pujari was confirmed and it was unanimously decided to appoint Sri K.K. Prajapati as the new President. On the same date, i.e., on 9.6.2009, petitioner no.2 wrote a letter (Annexure-10) to opp. party no.2 intimating him that in pursuance of the decision taken by the Governing Body of the Society on 3.6.2009 and in accordance with Clause-8 of the Bye-law of the Society, Sri R.K. Pujari has been removed from the office of the President of the Society for his unlawful activities and Dr. K.K. Prajapati has been unanimously elected as the President of the Society. On 10.6.2009, opp. party no.5- Sri Pujari wrote a letter under Annexure-11 to opp. party no.2 alleging that petitioner no.2 has put forged signature of the members and managed to pass the resolution which is illegal and requested opposite party no.2 not to take any action on the resolution sent by petitioner no.2. On the same date, i.e., 10.6.2009, petitioner no.2 published a notice in Oriya daily “The Sambad” notifying therein that R.K. Pujari has been removed from the office of the President of Rourkela, TES with effect from 03.06.2009. In the same edition of the Oriya daily, Sri R.K.Pujari also published a notice notifying removal of petitioner No.2-Pravat Mahapatra and for handing over charge to Pitabas Mishra. 4. On 17.06.2009, opposite party no.6-District Social Welfare Officer, Sundargarh wrote a letter to opposite party no.3-Sub-Collector, Panposh enclosing there with a copy of the letter dated 9.6.2009 (Annexure-9) and a copy of the letter of R.K. Pujari dated 10.6.2009 (Annexure-11). Opposite party 6 no.1 –Collector requested opposite party No.3-Sub-Collector to enquire into the matter and submit a report. 5. Thereafter, petitioner No.1-Society as well as petitioner no.2 filed a Civil Suit bearing O.S. No.1 of 2009 in the Court of District Judge, Sundargarh praying for passing of a decree declaring that R.K. Pujari and Pitabasa Mishra are not entitled to claim themselves as the President and Chairman of petitioner No.1-Society and not to interfere with the management of petitioner No.1-Society; and also passing a decree that Sri Pitabas Mishra has no right to act as Chairman or otherwise of petitioner no.1-Society or interfere with the management of the said Society. On 18.6.2009, learned District Judge, Sundargarh returned the plaint to the plaintiff to present the same before the competent Court. Accordingly, the said plaint was presented before the learned Civil Judge (J.D.), Panposh, which was registered as C.S. No.14 of 2009. The said suit was withdrawn on 20.7.2009 to be filed before the learned Civil Judge (SD), Rourkela. 6. On 22.6.2009, Sri R.K. Pujari lodged an F.I.R. with the Inspector- in-Charge of Raghunathpalli Police Station against Sri Pravat Mohapatra, petitioner no.2 alleging misappropriation of public funds, manipulation of bills, vouchers, transfer of property of petitioner no.1-Society etc. The said F.I.R. has been registered as Raghunathpalli P.S. Case No.92(10) of 2009 for alleged offences under Sections 420, 408 & 468 of the Indian Penal Code. Petitioner no.2 filed an application u/s. 438, Cr.P.C. for anticipatory bail before this Court and it was allowed. On 27.6.2009, the lawyer of petitioner no.1-Society 7 published a notice on behalf of petitioner no.1-Society in Oriya daily “The Sambad” stating the correct facts of the present dispute in order to put an end to speculation of the public regarding the functioning/administration of the Society. 7. On 1.7.2009, opposite party no.3-Sub-Collector issued a notice (Annexure-16) to the Secretary, R.T.E.S. intimating him that an enquiry on the activities of the R.T.E. Society would be conducted and directed petitioner no.2 to attend the said enquiry in his Chamber on 3.7.2009 at 3 P.M. with documents mentioned in the said notice. On 3.7.2009, pursuant to direction of the Sub-Collector, Panposh vide notice dated 1.7.2009 the petitioner submitted various documents before opposite party no.3. On 6.7.2009, the Sub-Collector submitted his report to opposite party No.4-District Social Welfare Officer, Sundargarh holding that removal of opposite party no.5-Sri R.K. Pujari from the office of the President was contrary to bye-law, inasmuch as removal Sri Pujari from the office of the President was made by the Governing Body and not by the General Body. Thus, for the self same reason, election of Dr. K.K. Prajapati was treated to be irregular. After submission of the report by opposite party no.3-Sub-Collector and on the basis of the note submitted by opp. party no.4-D.S.W.O., opposite party no.2-Addl. District Magistrate-cum-Addl. Registrar of Society, Sundargarh passed order dated 14.07.2009 under Annexure-18 restoring all the living members who constituted the Society in the year 1984-85. 8 8. Being aggrieved by the said order, petitioner filed Civil Suit No.150 of 2009 along with an application under Order 39 Rules 1 & 2 of the C.P.C. in the Court of Civil Judge (S.D.), Rourkela, which was heard and disposed of on 6.8.2009 holding that the suit is not maintainable since as per the bye-law of the Society, the suit was to be filed by the Secretary of the Society. On 25.8.2009 opposite party no.2 passed another order according approval to the meeting of the Governing Body held at the behest of the Society President- opposite party no.5-R.K. Pujari and others. However, in the said order, opposite party No. 2 did not approve the removal of Sri Pravat Kumar Mohapatra-petitioner no.2 from the primary membership of petitioner No.1- Society as the allegation leveled against him requires proper inquiry. Learned Civil Judge (Sr. Division), Rourkela has held that the suit filed by the President of the Society is not entertainable. At that stage, petitioner No.1-Society filed a memo for non-prosecution of the suit and the same was accordingly dismissed. Hence, the present writ petition. 9. Mr. A.K. Parija, learned Senior Advocate, appearing for the petitioner submits that the entire proceeding beginning from the initiation of the inquiry till rendering of the order by opposite party No.2 is without jurisdiction. These authorities have not been vested with any power in any law to inquire into the allegation made by the members of the Society and to annul the resolution adopted by the Society and restored a dead Governing Body of the year 1984-85, i.e., after a period of 25 years. Under the Act, opposite party No.2-ADM-cum-Addl. Registrar of Societies, Sundargarh has not been vested 9 with any power dealing with day-to-day affairs of the Society. Opposite party No.2 is only authorized to take recourse to the minutes of the meeting held by the Society concerned. Therefore, the impugned order passed under Annexures-18 and 19 are totally without jurisdiction, abuse of process of law and thus, liable to be quashed. Opposite party No.2 has committed a gross illegality by directing revival of the Governing Body of the year 1984-85 as by the date of passing the impugned order, many of the members, who constituted the Governing Body, have either expired or have been removed from the primary membership of the Society and thus ceased to be the members of the Society. The impugned order dated 25.8.2009 (Annexure-19) is ex facie illegal as approval to the so-called resolution passed by the Governing Body of the Society was not signed by the requisite members, as required to pass a resolution for removing a member from the Society. Out of nine living members, six members must have to pass the resolution forming 2/3rd of the members present and voting in terms of bye-laws. Though these members are said to have signed the resolution, as one member-Prakash Panigrahi was out of country, it is quite improbable that he was present in the meeting and signed the resolution. Therefore, the impugned order dated 25.8.2009 passed under Annexure-19 is liable to be quashed. Opposite party no.2 has simply reproduced the enquiry report submitted by opposite party no.3-Sub-Collector. Opposite party no.2, while passing the order under Annexure-19, should have taken into consideration as to who are the members, who constituted the so- called Governing Body of the Society and signed the resolution. Out of the six 10 members, five members have already been removed from the membership of the Society by way of valid resolution made in terms of bye-laws of the Society. The impugned order under Annexures-18 & 19 have created situation where the future of the educational institution maintained by petitioner No.1-Society will be seriously affected. The financial status of the Society as well as the educational institution shall also be affected vitally. 10. Mr. Parija further submitted that opposite party No.1-Collector has no authority to request opposite party No.3-Sub-Collector to enquire into the matter on the basis of letter dated 09.06.2009 (Annexure-9) and letter of R.K. Pujari dated 10.06.2009 (Annexure-11). Such action of the Collector is unknown to the Act. The order of approval dated 25.08.2009 passed by opposite party No.2 is not sustainable and the same has been passed to give a colour of genuineness to the illegal and unauthorized meeting. Opposite party No.2 is only authorized to record the minutes of the meeting held by the Society concerned. Therefore, the impugned orders passed under Annexures- 18 and 19 are totally without jurisdiction, abuse of process of law and are liable to be quashed. 11. Mr. R.K. Rath, learned Senior Counsel appearing for opposite party No.5 submitted that the writ petition is not maintainable as a civil suit bearing C.S. No.150 of 2009 was dismissed without leave to file fresh suit. This Rule of Public Policy is applicable to writ petition filed under Article 226 and Special Leave Petition. In support of his contention, Mr. Rath relied on the decision of the Apex Court in Upadhya and Co. V. State of Uttar Pradesh & 11 Ors., AIR 1999 SC 509. Placing reliance upon a decision of the apex Court in the case of P.R. Muralidharan and others vs. Swami Dharmananda Theertha Padar and others, (2006) 4 SCC 501, it was argued that jurisdiction of Civil Court is wide and plenary. A writ proceeding cannot be substituted for a Civil Suit. It is further submitted that since the petitioner No.2 himself invokes the jurisdiction of opposite party No.2-A.D.M.-cum-Additional Registrar, he is estopped from approaching this Court contending that opposite party No.2 has no jurisdiction. Forum hunting is not permissible. What cannot be done directly that cannot be done indirectly and that amounts to abuse of process of law. Mr. Rath, in support of his contention, relied upon the decision of the Apex Court in K.D. Sharma vs. Steel Authority of India Ltd. and others, 2008(12) SCC 481. 12. It is submitted that petitioner No.1-Society on earlier occasion filed a writ petition bearing W.P.(C) No.12182 of 2009 during pendency of the Civil Suit No.150 of 2009 before the Civil Judge (Sr. Division), Rourkela. The said civil suit was filed by petitioner No.1-Society through petitioner No.4-Dr. K.K. Prajapati. The said writ petition was withdrawn with liberty to file a fresh writ petition. No liberty was granted by this Court to add parties to the said writ petition. Therefore, addition of further parties both either as petitioners or opposite parties is not sustainable in law. Petitioner Nos. 3 to 9 being the strangers to the petitionerNo.1-Society, they have no locus standi to file the present writ petition. Petitioner No.2 was only allowed to file a fresh writ petition against the self same opposite parties in W.P.(C) No.12182 of 2009. 12 Therefore, the present writ petition is not maintainable and the same is liable to be dismissed. Moreover, the facts in W.P.(C) No.12182 of 2009 are clearly different from the facts of the present writ petition. The petitioner No.2 has filed a civil suit before the District Judge, Sundargarh vide O.S. No.14/1 of 2009 for adjudication of the dispute between petitioner No.2 and opposite party No.5. But, when the learned District Judge, Sundargarh expressed his inability to exercise his jurisdiction over the matter, the petitioner no.2 withdrew the same and filed C.S. No.14 of 2009 before the Civil Judge (Jr. Division), Rourkela. Further, since injunction was not entertained by the learned trial court, the petitioner no.2 being the plaintiff withdrew the same with a liberty to file it again before the Civil Judge (Sr. Division), Rourkela, but the petitioner No.2 has not filed any suit thereafter. The earlier writ petition bearing W.P.(C) No.12182 of 2009 and the present writ petition have been filed suppressing the relevant facts when C.S. No.14 of 2009 was pending before the Civil Judge (Jr. Division), Rourkela. The present petitioner Nos. 2 to 9 by a resolution authorized Dr. K.K. Prajapati, petitioner No.4 herein, who impersonating himself as the President of the petitioner No.1-Society filed Civil Suit No.150 of 2009 before the Civil Judge (Sr. Division), Rourkela on behalf of all the present petitioners. When the prayer for injunction was rejected, the plaintiff in the said suit filed an application to withdraw the same with a liberty to file a fresh suit. The lower Court refused to grant any liberty and dismissed the said suit as withdrawn. Since C.S. No.150 of 2009 was filed on behalf of the petitioner-Society as plaintiff, the present writ petition is hit by 13 the principle of res judicata. Sri Gurupada Nanda, representing the petitioner No.1-Society filed C.S. No.158 of 2009 before the Civil Judge (Sr. Division), Rourkela suppressing the true and correct facts. After passing of the interim order dated 16.09.2009, Sri Gurupada Nanda has withdrawn the suit unconditionally on 25.10.2009. The present petitioner No.2 in order to harass the legally constituted body of the petitioner no.1-Society on several times in various manner, filed fictitious suits and petitions for personal illegal gain. 13. According to Mr.Rath, the present petition is hit by non-joinder of necessary party. Petitioner Nos.3 to 9 are not the members of petitioner no.1- Society, as they were never inducted or admitted as members of the Society by any resolution nor they have paid any subscription or fees as required by law. Opposite party Nos.1, 3 and 4 being the Government functionaries, have no role to play under the Act and also no prayer is made against them. Opposite party Nos.3 and 4 being the sub-ordinate officers under opposite party No.2, only acted as per his direction so as to find out the truth. So, by no stretch of imagination, opposite party Nos.1, 3 and 4 can be added as proper parties to the writ petition. Therefore, the writ petition is badly hit by the principle of mis-joinder of parties. The petitioners have filed this writ petition deliberately suppressing the material facts. Petitioner No.2 is not the Secretary of petitioner No.1-Society, as claimed. As per Annexure-19 of the writ petition, petitioner No.2 ceased to be Secretary of petitioner No.1-Society and hence has no right whatsoever to file the present writ petition. The aggrieved parties instead of filing the present petition ought to have approached the controlling 14 authority i.e., Registrar of Societies for remedy of their grievance, if any. When an alternative and statutory remedy is available, the present writ petition is not maintainable. The order impugned has already been given effect to and the living members, who constituted the petitioner No.1-Society in the year 1984-85, have been restored. Under the circumstances, the living members of the original body are necessary parties and in absence of them, the writ petition is not maintainable. 14. If is further argued by Mr. Rath that there is distinction between the Governing Body and the General Body. The averments made in the writ petition are denied. There was no valid meeting either on 03.06.2009 or on 09.06.2009 in presence of valid members of the Society. The impugned order dated 14.07.2009 (Annexure-18) was passed by opposite party no.2 after due enquiry. In the meeting dated 23.07.2009, only three members were present; they are Sri Gurupada Nanda, Sri Kishore Patel and the present petitioner No.2. The Societies Registration Act is a Central Act and the State of Orissa adopted the same without framing Rules thereof. Therefore, it is pertinent to follow the Rules and Procedures adopted by the other States in this regard. As per the Rules framed under the Act and promulgated by other States, the Registrar of Societies or the Additional Registrar of the Societies may, in their discretion, institute such inquires or investigations in respect of any matter as may, in his opinion, be necessary for the proper working of the Society and administration of the Act on receipt of a complaint and counter complaint in the form of resolution from both the sides. Opposite party No.2 has rightly 15 ordered for an inquiry, summoned all the members and then came to know about living and dead members of the Society. 15. Mr. Pati, learned counsel appearing for opposite party No.6 has raised preliminary objection regarding maintainability of the writ petition. It is submitted that opposite party No.6-Pitabash Mishra by virtue of resolution dated 23.07.2009 (Annexure-E/5) passed by the General Body of the Society has become Secretary. Therefore, petitioner No.2-Pravat Kumar Mohapatra was no more the Secretary of the Society w.e.f. 23.07.2009. Hence, the writ petition filed by him is not maintainable. No resolution was passed by the Society to file the present writ petition and the Society is in no way prejudiced by the impugned orders passed under Annexures-18 and 19. Opposite party No.2 has conducted inquiry about the activities of the Society and ultimately found that due process of law has not been followed for expulsion of members inasmuch as expulsion of members has been made without approval of General Body having 2/3rd majority. Taking into consideration the above facts, opposite party No.2 restored the membership of all the living members, who had constituted the Society in the year 1984-85. The Petitioner No.2 is in no way prejudiced because he is continuing as one of the living members of petitioner-Society. Opposite party No.2 after verifying the fact that the list submitted by opposite party No.5-R.K. Pujari bears the signature of six members out of nine living members, which constituted 2/3rd majority of the members of the Society, accepted the proposal for functioning of the Governing Body of the Society. Sri K.K. Prajapati, Sri Navin Chakravarty and 16 petitioner Nos.3 to 9 are not members of the Society. No agenda was available for induction