2012 Supreme(Mad) 2260

2012 (3) LW 532
High Court of Judicature at Madras
V. RAMASUBRAMANIAN
Vallivalam Desikar Polytechnic Educational Society Nagapattinam, rep. by its Chairman, Governing Council M. Ezhilarasi & Another
Versus
The Registrar of Societies (In Charge) Nagapattinam & Others
CRP (NPD) NOS. 2140 & 2286 OF 2010 & W.P. Nos. 16929 OF 2008 & 5244 & 15094 OF 2011 & CONNECTED MPS.
Decided on: 06-06-2012

A person aggrieved by an order passed under Section 44(4) striking the name of the society, off the Register, would be entitled to file an appeal.

Headnote:

SOCIETIES REGISTRATION ACT - REMOVAL OF DEFUNCT SOCIETIES - APPEAL - LOCUS STANDI - RESTORATION OF REGISTRATION - CONDITIONS - SCHEME FOR ADMINISTRATION OF INSTITUTIONS - FRAMING OF SCHEME BY ADVOCATE GENERAL.

Fact of the Case:

The dispute was between two groups, one headed by Appasamy and his daughter Ezhilarasi, and the other headed by Appasamy’s wife Kanagammal and their son Manaazhagan. The first group challenged the registration of the third society bearing No.134/2007, which was set aside by the court. The second group challenged the order of the Inspector General of Registration dated 21.6.2010, which restored the registration of the society bearing No.49/69. The court also considered the issue of framing a scheme for the administration of the institutions in question.

Finding of the Court:

The court held that Ezhilarasi had locus standi to file an appeal against the order of the Registrar to the Inspector General of Registration. The court also held that the order of the Inspector General of Registration restoring the registration of the society was valid. The court further held that the communication of the Inspector General of Registration dated 16.6.2011 to the District Registrar asking him not to accept Form VII filed by Ezhilarasi was liable to be set aside. The court also directed the learned Advocate General to institute a suit on the file of the competent court under Section 92, CPC, for framing a scheme for the administration of the institutions in question.

Issues: 1. Whether Ezhilarasi had locus standi to file an appeal against the order of the Registrar to the Inspector General of Registration? 2. Whether the order of the Inspector General of Registration restoring the registration of the society was valid? 3. Whether the communication of the Inspector General of Registration dated 16.6.2011 to the District Registrar asking him not to accept Form VII filed by Ezhilarasi was liable to be set aside? 4. Whether a scheme should be framed for the administration of the institutions in question?

Ratio Decidendi: 1. The court held that Ezhilarasi had locus standi to file an appeal against the order of the Registrar to the Inspector General of Registration because: a. Section 44(5)(a) of the Tamilnadu Societies Registration Act, 1975 entitles three persons to file an appeal against the order striking the name of a registered society off the Register: (i) the registered society itself; (ii) any member; and (iii) a creditor. b. A reading of Section 44(5) shows that the appeal itself is against the order striking off the name of the society from the Register. Yet, Section 44(5) entitles the society also to file an appeal despite its having already become defunct. c. This is because of the fact that under Sub-Section (7), the society will be deemed to have continued in existence, as if its name had never been struck off, if its name is later restored. d. Therefore, it is clear that the doctrine of relationback is recognised by Sub-Section (7). 2. The court held that the order of the Inspector General of Registration restoring the registration of the society was valid because: a. The Inspector General of Registration, by his order dated 21.6.2010, held that Ezhilarasi did not have locus standi to file an appeal, for two reasons, namely (a) that she was admitted as a member only on 6.7.2007, much after the society was declared as defunct by the District Registrar under Section 44(2) and (b) that she was neither a member nor a creditor of the society, in terms of Section 44(5)(a) so as to be able to file an appeal. b. But both the above reasons are unsustainable. c. The court pointed out that the society had already become defunct with the publication of a Gazette Notification under Section 44(2) on 10.12.2003 followed by the publication of the Notification under Section 44(4) on 5.7.2007. Therefore, by virtue of Sub-Section (4) of Section 44, the society was deemed to be dissolved with effect from 5.7.2007. Consequently, its registration is deemed to have been cancelled by virtue of Sub-Section (8) of Section 44. d. Once the registration is cancelled, a right of appeal enures under Section 45(1)(b) to challenge the same. This right enures to the benefit of "any person aggrieved". Even as per the order of the Inspector General of Registration, Ezhilarasi was appointed as the Chairperson of the Governing Council of the polytechnic run by the society. Therefore, she is naturally interested in the restoration of the registration of the managing agency, namely, the society. Consequently, she became a person aggrieved by the order published in the Government Gazette under Section 44(4). Hence, she had locus standi to file the appeal, which she did on 5.10.2007 within a month of the publication in the Government Gazette dated 5.9.2007. e. Therefore, the reliance placed by the Inspector General of Registration, on the language of Section 44(5)(a), to hold Ezhilarasi as not having locus standi, is not correct. 3. The court held that the communication of the Inspector General of Registration dated 16.6.2011 to the District Registrar asking him not to accept Form VII filed by Ezhilarasi was liable to be set aside because: a. The Inspector General of Registration relied upon a decision of the Division Bench of this Court in W.A.No.515 of 2008 dated 31.10.2008 where it was held that the duties performed by the District Registrar, cannot be said to be merely ministerial. b. But, two Division Benches, one before and the other after 31.10.2008, have taken a contra view. c. The court held that the views expressed in R.Muralidaran reflect the correct position in law. d. But the said decision has not been brought to the notice of the Inspector General of Registration, which has resulted in his following the decision dated 31.10.2008. e. In any case, even without going into the controversy regarding the nature of the role played by the Registrar while accepting or rejecting Form VII, it is seen that the only ground on which the Inspector General of Registration issued the communication dated 16.6.2011 was that Ezhilarasi did not have locus standi. But that finding rendered by the Inspector General of Registration in his order dated 21.6.2010 has been set aside by the court in C.R.P.No.2140 of 2010. 4. The court held that a scheme should be framed for the administration of the institutions in question because: a. The polytechnic is located in the lands acquired by the Government in the year 1960 for a public purpose. b. The rest of the lands form part of a public charitable trust created by K.M.Desikar. c. The institution is run with the grant-in-aid provided by the Government every year to the tune of about Rs.2 Crores. d. The management and administration of the affairs of the institution should be in the hands of public spirited individuals, who can advance the cause for which the public charitable trust was created. e. This is possible only by having a scheme framed for the administration of the affairs of the institution.

Final Decision: 1. The court allowed the civil revision petition and the writ petition filed by the society bearing registration No.49/69 and dismissed the revision and writ petition filed by Manaazhagan. 2. The court directed the learned Advocate General to institute a suit on the file of the competent court under Section 92, CPC, for framing a scheme for the administration of the institutions in question.