A registered society cannot maintain a writ petition in its own name unless it is represented by a person duly authorized by the governing body of the society, as per Section 22 of the Chattisgarh Societies Registration Act, 1973.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. A question of maintainability has been raised by the respondent nos. 2 to 4, on the ground that the registered society, not being an independent juristic entity, cannot maintain the writ petition in its own name.

2. There is a reason why this court is not of the opinion that the writ can be decided on a question of law only, even if the principle embodied in Order XIV Rule 2 (2) (b) of the Code of Civil Procedure is applied.

3. First, both parties have argued the matter at length, on all questions of fact and law involved in the case, including the issue of maintainability. Hence, it would be an injustice to restrict judgment on the maintainability issue alone.

4. Secondly, in the facts of the case, a question arises as to whether the defect is curable, to decide which, the court has to enter into several questions of fact, such as, who has affirmed the writ, whether she/he was authorised in law to sue on behalf of the society, and several allied facts. Hence, it cannot be said strictly that the issue is a pure question of law.

5. However, the issue of maintainability is taken up first for adjudication. Learned counsel for the respondent nos.2 to 4 contends that the writ petition is not maintainable in its present form. The Chattisgarh Sponge Iron Manufacturers Association has, in its own name, filed the writ petition. However, as per Section 22 of the Chattisgarh Societies Registration Act, 1973 (hereinafter referred to as, “the 1973 Act”), every society may sue or be sued in the name of the President or Chairman or Principal Secretary or the Trustees, as shall be determined by the Regulation of the Society, and in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.

6. The present writ petition, however, has not been filed by any of the said officials of the society and, as such ought to be dismissed.

7. It is next contended that even in terms of the by-laws of the societies, Clause 14 confers power on the General Body of the Association to authorise the President, by passing a resolution, to do all legal works which are necessary for smooth running of the Association.

8. However, in the present case, it is not the President who has been entrusted with the authority to move the writ petition. The deponent in the affidavit supporting the writ petition, it is submitted, seeks to place reliance on an authorisation by the President. However, the President does not have the power under the by-laws to so authorise a third person to file a writ petition for the Society.

9. The purported resolution annexed to the supplementary affidavit filed today by the petitioner, it is argued, is not genuine and has been manufactured as an afterthought. In any event, it is contended, the purported resolution appoints the deponent of the writ petition, who is not the President, to affirm the writ petition. However, there is no such provision either in the by-laws or the 1973 Act.

10. It is further submitted by learned counsel for the respondent nos.2 to 4 that mere authorisation to affirm an affidavit and present a writ petition cannot cure the defect which is implicit in the presentation of the writ petition. Although anybody having direct knowledge may affirm an affidavit and file the writ petition on behalf of another person, under Section 22 of the 1973 Act, the President, Secretary or other official designated therein has to file the writ petition and not the Association in its own name.

11. Thus, it is contended, the writ petition ought to be dismissed on such score alone.

12. Learned counsel for the petitioner places reliance on the judgement in Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another reported at (2006) 1 SCC 75, where it was held by the Supreme Court, inter alia, that non-compliance of any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic d