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2006 Supreme(Kar) 343
IN THE HIGH COURT OF KARNATAKA, AT BAN GALORE
AJIT J. GUNJAL, J.
ADVOCATES' ASSOCIATION, BAN GALORE - Petitioner.
Versus
THE DISTRICT REGISTRAR AND REGISTRAR OF SOCIETIES, BANGALORE URBAN DISTRICT AND OTHERS - Respondent
Writ Petition No. 2721 of 2006 (GM-KSR) connected with Writ Petition No. 2955 of 2006 (GM-KSR).
Decided on 17th April, 2006
Sri Muniyappa and Sri S. Kalyan Basavaraj, Advocates for Petitioner in W.P. No. 2721 of 2006;
Sri S.R Hegde Hudlamane, Advocate for Petitioners in W.P. No. 2955 of 2006;
Sri Ravishankar for M/s. Lex Nexus, Advocate for Caveator-Respondent-2 in W.P. No. 2721 of 2006;
Sri M/s. Lex Nexus, Advocate for Caveator-Respondent-2 in W.P. No. 2955 of 2006;
Sri Ravivarma Kumar, Senior Counsel for Sri KN. Subbareddy, Advocate for Respondent-4 in W.P. No. 2721 of 2006;
Sri Rameshchandra, Advocate for Respondent-5 in W.P. No. 2721 of2006.
Headnote:Bombay Public Trust Act, 1950 -Section 69 -Jurisdiction of Registrar -Interim Order of stay granted suspending until controversy is resolved by holding enquiry -Registrar has power to grant such relief. [Ajit Gunjal, J.]: In So far as decision relied on by the learned counsel appearing for the petitioner, it is to be noticed that that was a case which arose under the Bombay public Trust Act. What fell for consideration is the scope of section 69 of the Act under which a Charity Commissioner has the power to issue an order of injunction against a trustee restraining alienation The Court was of the opinion that there is no provision conferring power of the Charity Commissioner to issue an injunction against the trustee. But however that is not the case here. It is not a case where injunction is issued against the petitioner. It is a case where an interim order of stay is granted suspending the elections until the controversy is resolved by holding an enquiry. In the circumstances, it cannot be said that the Registrar did no have power to grant an interim order.
Constitution of India -Articles 226 -Amenability to writ jurisdiction -Society registered under Karnataka Societies Registration Act -Amenable to writ jurisdiction. See, Karnataka Societies Registration Act, 1960 -Section 25.
Karnataka Societies Registration Act, 1960 -Section 15- Suing by society -Whether should be sued in the name of President, Chairman, Trustee etc., -Rules and regulations should determine -Absence of -A resolution to that effect is required. [Ajit Gunjal, J.] Section 15 of the Karnataka Societies Registration Act provides that every society registered under the Act may sue or be sued in the name of the President, Chairman, or Principal Secretary or the trustee as shall be determined by the Rules and Regulations of the Society. It clearly enables a registered society to determine by rules and regulations in whose name the society may sue or be sued. The Rules and Regulations may determine whether the society may sue or be sued in the name of the President, Chairman, Principal Secretary or Trustee. Where the rules and regulations do not so determines, it enables the Governing Council of the society/association to appoint a person for the said purpose. In the absence of any such resolution by the association enabling the Secretary to initiate proceeding, I am of the considered view that the present writ petition filed by the Secretary representing the association is not maintainable.
Karnataka Societies Registration Act, 1960 -Section 25 -Jurisdiction of Registrar -Postponement of election by -Registrar found that admission of certain members was not in conformity with bye-laws -Held, he was within his jurisdiction to postpone the eventuality. (Held Para 26) [Ajit Gunjal, J.]: It is to be noticed that the Association is registered under the Karnataka Societies Registration Act, which would necessarily mean that it is amenable to the jurisdiction of the Registrar. The Registrar has prima facie found that holding of an election pursuant to calendar of events would be unjustifiable. He is prima facie of opinion admission of certain members to the society is not conformity with the bye-laws of the association. When it is so, Court is of considered view that it is within the powers of the Registrar to postpone the eventuality. Of course this power will have to be exercised sparingly and only in an exceptional circumstances and not as a matter of course.
Karnataka Societies Registration Act, 1960 -Section 25 -Proceedings by Registrar -Nature of -Whether suo motu or on basis of a complaint by 1/3rd members -No complaint was found to have been made -Hence, proceedings have to be treated as suo motu proceeding -What is required by Registrar in such an enquiry is a prima facie satisfaction. [Ajit Gunjal, J.] - On the basis of this information the proceedings are initiated which would fall under the category of suo motu proceedings. It is no doubt true that he cannot mechanically act at the behest of some persons or form an opinion that it is expedient for holding an enquiry. Apparently in the case on hand the Registrar of societies was of the opinion that it is expedient to hold an enquiry into the functioning of the association, in as much as, according to him, he was prima facie of the opinion that certain alleged irregularities have been committed by the association while admitting the members to the society. Of course the Court is not called upon to pronounce on the fact whether admission of the members to the association is in violation of the bye-laws and the memorandum of association. Apparently this factor will have to be considered by the Registrar himself. What was required by the Registrar is a prima facie satisfaction before initiation of an enquiry.
Even though the matters are listed for preliminary hearing, with consent, they are taken up for final disposal as service is complete.
2. W.P. No. 2721 of 2006 is filed by the Advocates Association represented by its General Secretary. W.P. No. 2955 of 2006 is filed by two members of the Governing Council. Mr. Ravivarma Kumar, learned Senior Counsel is appearing for respondent 4 in W.P. No. 2721 of 2006 and Mr. D.L.N. Rao, learned Senior Counsel has entered appearance for respondent 2. In W.P. No. 2955 of 2006 Mr. B.N. Prasad, learned Government Pleader is directed to take notice for respondent 1. Respondents 2 and 3 are represented by Mr. Ravivarma Kumar and Mr. D.L.N. Rao, learned Senior Counsel and respondent 4 is represented by Mr. Jayakumar Patil, learned Senior Counsel.
3. A situation has arisen in the present context where the Advocates Association represented by the General Secretary is before this Court questioning the order passed by the first respondent wherein he has suspended the election process which has commenced on 13-2-2006.
4. Facts, shorn off unnecessary details, can be summarised as follows.- .
The petitioners case in both the petitions is that it is a registered association registered under the Karnataka Societies Registration Act, 1960. It has approved bye-laws which govern the management of the association through elected Council which is called the Governing Council. The term of the office of the existing Governing Council of the petitioner has expired and a new Governing Council is to be elected and constituted. It appears the outgoing Governing Council has passed a resolution appointing the Chief Returning Officer to conduct the election for the year 2006-07. In furtherance thereof, the Chief Returning Officer and the team of Returning Officers have issued a calendar of events on 13-2-2006 which has been published. A copy of which is produced at Annexure-A. It appears, respondents 2 and 3 have submitted a representation to the first respondent on 30-1-2006 alleging certain illegal admission of membership and in violation of the bye-laws of the Advocate Association. The said representation was not taken up for consideration by the first respondent. In these circumstances, a public interest litigation was filed by respondents 2 and 3 in W.P. No. 169 of 2006. The reliefs sought for in the said writ petition are:
"(a) to set aside the resolution of the respondent 2 dated 6-1-2006 whereby the Secretary has been conferred the power to approve the membership in violation of the bye-laws and to annual all membership made by the Secretary;
(b) to appoint an independent committee of Senior Advocates to go into the membership rolls of all newly inducted members of the years 2003, 2004, 2005 and 2006 and remove from the rolls all members who are not practising in the Metropolitan Courts of Ban galore;
(c) to set aside the appointment of the Returning Officer by the Secretary and to appoint a Senior Member of the Bar as Returning Officer;
(d) to direct the Returning Officer so appointed to proceed with the election only after correcting the membership rolls and after eliminating the ineligible members;
(e) to direct respondent 1 to appoint an officer to supervise the election and to go into the illegalities;
(f) to direct the compliance of Bye-laws 35 and 45 of the respondent 2 and to permit payment of arrears upto 15 days prior to election".
5. This Court disposed of the said writ petition on 14-2-2006. A copy of the same is to be found at Annexure-C. The Division Bench was of the opinion that considering the nature of the dispute and the controversy raised in the writ petition, the same cannot be properly and effectively adjudicated in a proceeding under Article 226 of the Constitution of India. This Court further observed that an effective and proper adjudication of the dispute and the controversy will require inspection, verification and scrutiny of the records of the petitioner and also enquiry into the qualifica
