In the High Court of Judicature at Madras Dated : 21.10.2010 Coram : The Honourable Mr.Justice P.JYOTHIMANI WRIT PETITION Nos.25557 and 33802 of 2004 The Orathur Thiruvalluvar Uyar Nilai Palli Committee rep.by its Secretary ...Petitioner in WP.25557/2004 Orathur Thiruvalluvar Uyar Nilai Palli Committee No.3/1958 by its President Mr.V.Anbalagan ...Petitioner in WP.33802/2004 Vs 1.The Registrar of Societies, District Registrar (Administration) Chidambaram. 2.The Inspector General of Registration No.120, Santhome High Road, Chennai-28. 3.Tamilnadu Inspector General of Registration (Incharge), (P.A.General, Deputy Inspector General of Regn.) NO.120, Santhome High Road, Chennai-28. ...Respondents in both WPs PETITIONS under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the proceedings of the third respondent bearing No.39876/I1/2003 dated 5.4.2004 confirming the order of the first respondent bearing No.2928/Aa2/2001 dated 23.6.2003, quash the order dated 5.4.2004 and direct the second respondent to dispose of the petitioner's appeal dated 11.8.2003 and direct the respondents to accept and take into file the returns submitted by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.Subramani in WP 25557/2004 For Petitioner : Mrs.Vijayakumari Natarajan in WP 33802/2004 For Respondents : Mr.N.Senthilkumar, AGP COMMON ORDER These two writ petitions have been filed challenging the very same impugned order of the first respondent dated 23.6.2003 as confirmed by the third respondent dated 5.4.2004 passed in an appeal filed against the impugned order of the first respondent under Section 45 of the Tamilnadu Societies Registration Act, 1975 (hereinafter referred to as the Act). 2. While the petitioner in WP.No.25557 of 2004 happens to be the Secretary of the Orathur Thiruvalluvar Uyar Nilai Palli Committee, the petitioner in WP.No.33802 of 2004 is stated to be its President. In respect of the functioning of the society, which is running a school and the society having been registered in the year 1958 with Regn.No.3 of 1958 under the Act of the year 1860, there appears to be some disputes regarding constitution of its members. As per the constitution of the members of the committee, which is stated to be consisting of five members, on the death of a member, the legal heirs are entitled to succeed. In 1988, it is seen that one of the members has raised doubt about certain irregularities in the constitution of the school committee and running of the school and thereafter, it also appears that the dispute in that regard has been settled amicably. It is because of the disputes for a certain period, necessary statements and records, which are to be filed before the Registrar of Societies – the first respondent as per the provisions of the Act, were not presented. After the settlement of the dispute, it appears that necessary papers were presented by both the petitioners and they were continued to be accepted by the first respondent till the year 2003. 3. It is seen that on the records being submitted by the Secretary of the Committee, who is the petitioner in WP.No.25557 of 2004, after the report of the Inspector, the first respondent inspected the functioning of the society and called for certain particulars. It is also available on record that the petitioners have been directed to pay certain charges for belated filing of the records and on payment of such charges, the records were received by the first respondent till the year 2003. 4. The writ petition, filed earlier by the petitioner in WP.No. 33802 of 2004, in WP.No.9051 of 2001 for a direction in respect of the inaction of the Registering Authorities relating to an amendment proposed for constitution of the committee, came to be dismissed by this https://hcservices.ecourts.gov.in/hcservices/ Court on 10.2.2003 holding that there cannot be an apprehension that the first respondent would not register the amendment. It was thereafter the first respondent has given a notice to the petitioners to appear for an enquiry and produce various records. The enquiry stood adjourned from time to time and both the petitioners have, in fact, submitted their explanations and produced various records. The said enquiry was relating to receipt of documents in respect of various orders after 1999 when the dispute between the petitioners came to be settled. 5. While conducting such enquiry, the first respondent passed the impugned order on 23.6.2003 stating that the petitioner society has not been filing its records as required under the provisions of the Act and due to default, after giving notice under Section 44(2) of the Act and issuing necessary publications in the Gazette under Section 44(4) of the Act, the petitioner society came to be declared as defunct with effect from 21.12.1988. After elaborate discussion of the enquiry proceedings, in which, of course the first respondent has referred to some of the irregularities, ultimately, the first respondent has rejected the request of the petitioner for the purpose of receiving the documents on the ground that the society has been declared as defunct with effect from 21.12.1988 and in respect of such society, there is no question of receiving of any documents pertaining to its functions. 6. Challenging the said order of the first respondent, the petitioners have filed an appeal to the Inspector General of Registration – the third respondent under Section 45 of the Act and that appeal came to be rejected by the third respondent, who was acting as the Inspector General of Registration at that time on 5.4.2004, reiterating the stand taken by the first respondent in the original impugned order, however also including that in spite of the order declaring the petitioner society as defunct passed under Section 44(4) of the Act as early as 21.12.1988, the petitioners have not taken any steps to file an appeal to the Competent Authority as per Section 44(5) of the Act and therefore, the appeal came to be rejected. It is against this order, the present writ petitions came to be filed both by the Secretary and President of the same society respectively challenging the very same order. 7. Learned counsel for the petitioners have vehemently submitted that if really the petitioner society was declared as defunct in the manner known to law as per Section 44(4) of the Act on 21.12.1988 itself, the first respondent himself, who is stated to have passed the order on 21.12.1988, ought not to have continued the enquiry by calling upon the parties to produce various records. It is their submission that the first respondent has, in fact, inspected the records of the petitioner society and found that various particulars have not been furnished and was repeatedly insisting the petitioners to produce the records. According to the learned counsel, this would show that the stand taken by the first respondent in the impugned order for the first https://hcservices.ecourts.gov.in/hcservices/ time that the society became defunct even on 21.12.1988 is totally non est. 8. It is the further contention of the learned counsel for the petitioners that the petitioners have not received any notice in any of the proceedings stated to have been initiated by the first respondent under Section 44(2) of the Act. Therefore, according to the learned counsel, the entire proceedings culminated into declaration of the petitioner society as defunct with effect from 21.12.1988 should be ignored as non est, since the mandatory requirement as required under the statute, namely giving notice before passing such order has not been followed. 9. On the other hand, it is the contention of the learned Additional Government Pleader that there may be a mistake in calling for the particulars regarding the functioning of the society. Inasmuch as the specific stand of the first respondent as seen from the impugned order is that after following the provisions of the Act, the petitioner society has been declared as defunct, unless and until that order stands set aside, the petitioners cannot contend that the society should continue to remain in the statute books. It is his further contention that filing of the writ petitions against the impugned order does not mean that the society should be permitted to continue even after it was declared as defunct with effect from 21.12.1988. 10. I have heard the said contentions of the learned counsel on either side, referred to the various orders filed in the typed set of papers and given my anxious consideration to the issues involved in this case. 11. On the face of it, it is true that the first respondent has committed a grave mistake in continuing the enquiry to give an impression that the petitioner society continues to be in existence. The very fact that the first respondent has been calling for various particulars from the petitioner society shows that the first respondent himself has been under the impression that the petitioner society continues to be in the statute books. But, on facts, when the first respondent has given a clear finding that the petitioner society became defunct for not filing the statements from the year 1981-82, the petitioner society has been proceeded by the Registering Authority under Section 44(2) of the Act and it is stated that the notice has, in fact, been issued to the parties concerned and thereafter, the Gazette Notification is issued publishing that the petitioner society has become defunct, which is as per Section 44(4) of the Act, one cannot ignore the existence of a fact, which has happened as per the statutory provisions. 12. Section 44 of the Act enables the Registering Authority to declare an existing society as defunct by removing its name from the https://hcservices.ecourts.gov.in/hcservices/ register by following certain procedure. Section 44(2) of the Act, which is as follows : 'If the Registrar either receives an answer from the registered society to the effect that it is not carrying on business or in operation, or does not within such period as may be prescribed after sending the letter receive any answer, he may publish in the Tamilnadu Government Gazette, and send to the registered society by registered post, a notice that, at the expiration of such period as may be prescribed from the date of such publication, the name of the registered society mentioned therein will, unless cause is shown to the contrary, be struck off the register and the registered society will be dissolved.' mandates that before passing such order of declaring the existing society as defunct due to various reasons, the concerned society has to be heard by giving notice. 13. It is after giving such notice and conducting enquiry and in spite of the enquiry, if the Registering Authority is of the view that the society should be declared as defunct, the same has to be issued by way of a public notice published in the Tamilnadu Government Gazette as contemplated under Section 44(4) of the Act, which is as follows : 'At the expiration of the time mentioned in the notice referred to in sub.section (2), or sub.section (3), the Registrar may, unless cause to the contrary is previously shown by the registered society, strike its name off the register and shall publish notice thereof in the Tamilnadu Government Gazette, and, on the publication of such notice, the registered society shall be deemed to be dissolved : Provided that the liability, if any, of every officer and member of the registered society shall continue and may be enforced as if the registered society had not been dissolved.' 14. It is the case of the learned counsel for the petitioners that neither the procedure contemplated under Section 44(2) nor the procedure contemplated under Section 44(4) of the Act has been followed in declaring the petitioner society as defunct with effect from 21.12.1988 and according to them, when they are running the society, which is not disputed and which is evident from the fact that the first respondent has recognised the petitioners as the persons managing the society by various communications and so on, in the absence of any notice given under Section 44(2) of the Act, which is a mandatory requirement, the proceedings or Notification issued under Section 44(4) of the Act has to be declared as non-est. I do not agree with the said contention. 15. Even if the basic principles of natural justice, as enumerated https://hcservices.ecourts.gov.in/hcservices/ under Section 44(2) of the Act, a mandatory requirement, are not followed by the Registering Authority before issuing the Gazette Notification declaring the existing society as defunct and once the statutory formalities contemplated under Section 44(4) of the Act have been followed and the Gazette Notification has, in fact, been issued, unless and until such Notification is set aside in the manner known to law, one cannot simply say that the Notification has to be ignored, so as to hold that the society should continue to be in existence. It is not as if, in these circumstances, the party aggrieved has no relief. 16. Section 44(5) of the Act, which reads as follows : '44(5)(a) : If a registered society or any member or creditor thereof feels aggrieved by the name of the registered society having been struck off the register, such registered society, member or creditor may, within such period as may be prescribed from the date of the publication in the Tamilnadu Government Gazette of the notice of striking off the name of the registered society, appeal - (i) where the name of the registered society is struck off by the Inspector General of Registration, to the Government; (ii) in any other case, to the Inspector General of Registration. (b) The Government or the Inspector General of Registration on being satisfied that the registered society was, at the time its name was struck off, carrying on business or in operation or otherwise that it is just and equitable that the name of the registered society be restored to the register, may order such restoration.' enables the party to file an appeal. In fact, Section 44(5) of the Act enables the Government and the Inspector General of Registration on being satisfied that the registered society was struck off by mistake or by any other reason, it is just and equitable that the name of the registered society should be restored and it is open to the Government as well as the Inspector General of Registration to restore the society to the register. 17. Section 44(8) of the Act, which reads as follows : 'If the name of the registered society having been struck off the register, has not been restored or if the period allowed for appeal has lapsed or no appeal has been made or an appeal has been made but dismissed, under this Act, the registered society shall not function and the provisions of Section 39 shall apply as if the registration of such society has been cancelled.' states that unless the society, which is struck off is restored or any https://hcservices.ecourts.gov.in/hcservices/ appeal filed against the said order stands allowed, the society shall not be permitted to function by applying Section 39 of the Act. As far as Section 44(8) of the Act and its applicability on the facts of the present case are concerned, taking note of the consistent conduct of the first respondent in recognising the petitioners as persons in-charge of the society, I am of the considered view that the said section cannot be put against the petitioner for declaring any of the conduct done by the petitioner society through out till date as either invalid or inoperative. 18. As rightly submitted by the learned Additional Government Pleader, the petitioners are to be permitted to file necessary appeal against the order passed by the first respondent under Section 44(4) of the Act dated 21.12.1988 declaring the petitioner society as defunct. As far as the period of limitation is concerned, Rule 37(3) of the Tamilnadu Societies Registration Rules, which reads as follows: 'The appeal under sub.section (5) of Section 44 shall be preferred within one year from the date of publication of the notice referred to in sub.section (4) of the said section', enables parties to file an appeal within a period of one year from the date of publication of the notice under Section 44(4) of the Act. Inasmuch as the case of the petitioners that the proceedings of the enquiry stated to have been conducted by the first respondent under Section 44(2) of the Act and the Gazette Notification under Section 44 (4) of the Act have not been communicated to the petitioners, which has to be necessarily accepted on the basis of the conduct of the first respondent through out as stated above, I am of the considered view that the petitioners must be permitted to file an appeal against the order of the first respondent dated 21.12.1988 by treating the knowledge about the passing of the Notification as on today so as to enable them to enforce their right of appeal as per Section 44(5) of the Act. 19. In such view of the matter, no useful purpose will be served in either interfering with or declaring the validity or otherwise of the impugned order passed by the first respondent as confirmed by the third respondent and in order to render an effective justice, the petitioners must be permitted to file an appeal against the original order of defunct dated 21.12.1988 passed under Section 44(4) of the Act. 20. Since it is the consistent stand of the petitioners and it is acceptable for the reasons stated above, the first respondent is directed to furnish a copy of the Gazette Notification and orders under Section 44(4) of the Act dated 21.12.1988 to the petitioners within a period of one week from the date of receipt of a copy of this order. It is for the petitioner to file such appeal under Section 44(5) of the Act before the second respondent – Appellate Authority against the order dated 21.12.1988 passed by the first respondent within two weeks https://hcservices.ecourts.gov.in/hcservices/ thereafter. If such appeal is filed within the time stipulated, the second respondent – Appellate Authority shall receive the appeal and decide the same on merits without rejecting it on the ground of limitation within eight weeks therefrom. 21. It is also seen that pending the writ petitions, there has been an order of interim stay and by virtue of it, the petitioners are running the society as on date. It is made clear that after orders are passed by the Appellate Authority, it is for the Competent Authority to take necessary action regarding the obligation of the petitioner society in filing various documents in accordance with law. The writ petitions are disposed of accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Registrar of Societies, District Registrar (Administration) Chidambaram. 2.The Inspector General of Registration, No.120,Santhome High Road, Chennai-28. 3.Tamilnadu Inspector General of Registration (Incharge), (P.A.General, Deputy Inspector General of Registration), NO.120, Santhome High Road, Chennai-28. +1cc to Mr.V.Subramani, Advocate Sr 76034 +1cc to Mrs.Vijayakumari Natarajan, Advocate Sr 76102 RS GGK(CO) km/8.11. WP.NOS.25557 & 33802 of 2004 https://hcservices.ecourts.gov.in/hcservices/