Back
2018 Supreme(Cal) 961
IN THE HIGH COURT AT CALCUTTA
I. P. MUKERJI, AMRITA SINHA, JJ.
Liang Miao Sheng & Ors - Appellant
Versus
The State of West Bengal & Ors - Respondent
APO 542 of 2017 & WP 518 OF 2016
Decided On : 19-09-2018
Advocate Appeared:
For the Appellant : Mr. Shyamal Sarkar, Sr. Adv. Mr. Rajesh Gupta, Mr. Meghajit Mukherjee, Ms. S. Fasih Mr. S. Mukherjee
For the Respondent: Mr. Siddhartha Mitra, Sr. Adv Mr. Sunil Kumar Chakraborty, Mr. H. Bhattacharya, Mr. Sudip Deb, Mr. S. Bhattacharya, Mr. Sumitava Chakraborty
For the State : Mr. Amitesh Banerjee, Sr. Standing Counsel Mr. Billavadal Bhattacharya.
The main legal point established in the judgment is the Registrar's authority to review and cancel the registration of a society under Section 22 of the Bengal General Clauses Act, the distinction between substantive and procedural review, and the need for the civil and criminal courts to address issues of fraud and forgery in obtaining registration.
Headnote:
Registrar's Power - Cancellation of Registration - West Bengal Societies Registration Act, 1961 - Section 22 of Bengal General Clauses Act - Summary of Acts and Sections: The court discussed the Registrar's power to cancel the registration of a society under the West Bengal Societies Registration Act, 1961 and Section 22 of the Bengal General Clauses Act. The court highlighted the legal provisions and their interpretations, emphasizing the Registrar's authority to review and cancel the registration, the distinction between substantive and procedural review, and the absence of an express or implied bar in the Act forbidding the Registrar from cancelling the registration. The court also considered the implications of fraud and forgery in obtaining registration and the role of the civil and criminal courts in addressing such issues.
Fact of the Case:
The case involved the cancellation of the registration of Pei May Chinese High School by the Registrar of Firms, Societies, and Non-Trading Corporation, West Bengal. The school was registered as a society under the West Bengal Societies Registration Act, 1961, and a complaint was lodged alleging forgery of signatures in the Memorandum of Association. The Registrar initially rejected the complaint, but subsequent legal proceedings led to the cancellation of the school's registration. The appellants challenged the cancellation, leading to a difference of opinion between the judges, resulting in a referral to the Chief Justice for administrative orders.
Finding of the Court:
The court found that the Registrar had the power to review and cancel the registration of a society under Section 22 of the Bengal General Clauses Act, despite the absence of a specific provision in the West Bengal Societies Registration Act, 1961. However, the court also noted that the Registrar's decision to cancel the registration was based on different grounds than those raised by the complainants, and the Registrar had exceeded its jurisdiction in arriving at the decision. The court emphasized the need for the civil and criminal courts to address issues of fraud and forgery, and the Registrar's role in procedural review rather than substantive review.
Issues: The main issues included the Registrar's power to cancel the registration of a society, the distinction between substantive and procedural review, and the implications of fraud and forgery in obtaining registration.
Ratio Decidendi: The court held that while the Registrar had the power to review and cancel the registration of a society under Section 22 of the Bengal General Clauses Act, the decision to cancel the registration was based on different grounds than those raised by the complainants, and the Registrar had exceeded its jurisdiction. The court emphasized the need for the civil and criminal courts to address issues of fraud and forgery, and the Registrar's role in procedural review rather than substantive review.
Final Decision: The court set aside the impugned judgment and order passed by the Learned Trial Judge and referred the matter to the Chief Justice for appropriate administrative orders.
JUDGMENT :
I.P. MUKERJI, J.
1. There is a sizable Chinese community in Kolkata. Almost all its members are permanently settled here. Their ancestors migrated to this city a long time ago. There is a specific area in the city where there is concentration of this community. It is called China town. You will find Chinese culture, tradition, food, religion and way of life in every corner of it. It is no wonder that these Chinese people wanted to educate their children in the Chinese tradition. In 1929, they started their own school Pei May Chinese High School in a small hut.
2. We do not know when the association was born but the Chinese Tannery Owners’ Association was founded by these Chinese people. This association, on 18th January, 1946 purchased a parcel of land of more than 3 and 1/2 bighas in Tangra, in China Town. It is numbered as premises No. P1 & 2 Iswar Mandal Lane, Kolkata-46. In 1950, the school shifted to this plot of land. This association was registered much later on 18th May, 1967 under the West Bengal Societies Registration Act, 1961. The registered address was 6 New Tangra Road, Kolkata – 700046. This association has a memorandum. It mentions this school as its sister concern, with an independent managing committee.
3. On 19th February, 2010 Pei May Chinese High School was registered as a society under the said Act. On 18th July, 2010 an election of the managing committee of the school was held. Liu Kao Chao was elected as the President. Li Shih Lin was elected as the Secretary of the School/society. Chen Khoi Kui also contested for the post of secretary but was unsuccessful. On 17th August, 2010, Chen Khoi Kui describing himself as the elected secretary of Pei May High School lodged a complaint with the Registrar of firms, Society and non-trading corporation that the new association had been registered fraudulently by some members of the Chinese Tannery Owners’ Association.
4. On 17th August, 2010, complaints were made by three persons Chung Chih Ping, Liwan Tho and Li Chih with the Registrar, that their names had been included in the memorandum of the association and its regulations without their knowledge and consent.
5. The ground made by the school represented by its secretary Li Shih Tin in a writ application filed in this Court (WP NO.4 of 2011) was that the Registrar, on receiving the complaints ought to have cancelled the certificate of registration of the association and failed to discharge his duty in not doing so. On 10th January, 2011 this writ application was disposed of by this Court simply by asking the respondent authority to give its decision in the matter. On 25th January, 2012 the Registrar made a decision rejecting the application for cancellation of the school registration, on the ground, that he had no power to do so. This time the school represented by its secretary Mr. Chain Khoi Kui filed another writ application (WP NO.140 of 2012) challenging this decision. On 16th July, 2015 this Court opined that the Registrar had the power and disposed of the writ by remanding the matter back to him. An appeal followed. On 14th January, 2016, the Appellate Court affirmed this order.
6. On 19th April, 2016 the Registrar ruled that registration of the school was obtained by suppressing facts. He said that the school according to the memorandum of association of the Chinese Tannery Owners’ Association belonged to them and was run by their members. It had to amend the memorandum of association, by permitting the school to be run by a separate society from their property. Unless this was done the school could not be registered as a separate association in the self-same premises where the Chinese Tannery Owners’ Association ran the school. Hence, the registration of the school was cancelled.
7. In those circumstances the present writ application (WP 518 of 2016) was preferred. Shortly, the grounds in support of it were that the Registrar did not have the power to cancel the registration, the respondent authorit
