The main legal point established in the judgment is that the declaration of a society as defunct does not automatically result in the cancellation of its registration. A separate order of cancellation by the Registrar is necessary before the appointment of a liquidator under Section 40 of the Tamil Nadu Societies Registration Act, 1975.

JUDGMENT

(Prayer: Appeal filed under Clause 15 of Letter Patent praying to set aside the order passed by this Court in W.P.No.3729 of 2012 dated 09.11.2018.)

P.B. Balaji, J.

1. A third party to the writ proceedings, aggrieved by the order of the Writ Court, with the leave of this Court obtained earlier, has filed the present Writ Appeal.

2. The writ petition was filed by the petitioner Sangam, who is the 1st respondent in the Writ Appeal. The prayer sought for before the writ court was for issuance of a Writ of Mandamus to direct the statutory respondents to appoint a liquidator, with respect to “Marakanam Nadar Mahimai Paribalana Sangam, Marakkanam” (Reg.No.4/1960)”, as mandated under Section 40 of the Tamil Nadu Societies Registration Act, 1975 and pass such further or other orders.

3. It was the case of 1st respondent before the writ court that the above-mentioned Sangam was functioning in violation of the Society’s by- laws as well as the statutory enactments and that the members of the Sangam colluded amongst themselves to grab the properties of the Society. It is the further case of the 1st respondent that, the Registrar of Societies issued a show cause notice as to why the registration should not be cancelled since the Sangam had become defunct for non-filing of accounts for 3 consecutive financial years as mandated under Section 16(3) of the Tamil Nadu Societies Registration Act, 1975. The grievance of the 1st respondent was that despite the said notice, no measures were taken by the then members of the Sangam. A collusive suit was also filed in O.S.No.64 of 2008, without impleading the Society or its members as parties, in order to grab the valuable properties of the Sangam. In order to canvass all these issues, the 1st respondent was formed to recover the properties of the said Sangam. The 1st respondent sent a notice dated 26.12.2011, calling upon the statutory respondents to appoint a liquidator for the defunct Sangam and since the said notice was not even responded to, the 1st respondent filed the writ petition, seeking appointment of the liquidator under Section 40 of the Tamil Nadu Societies Registration Act, 1975.

4. The Registrar of Societies filed a counter before the Writ Court, stating that the Sangam failed to file annual returns as prescribed under Section 16(3)(b) of the Act, therefore invoking Section 44(4) of the Act, the Sangam was declared as defunct. It is further stated that the 1st respondent / writ petitioner had already filed suit in O.S.No.117 of 2008 and it was pending before the Sub-Court, Tindivanam and in the said suit the prayer sought for was to recover the properties belonging to the said Sangam and therefore without pursuing the civil remedy already initiated, the writ petition was not maintainable. It is also specifically stated in the said counter is that the Society was declared as defunct and the registration had not been cancelled and therefore appointment of liquidator under Section 40 of the Act would not arise, it was hence prayed that the writ petition ought to be dismissed.

5. The Writ Court, after hearing the 1st respondent and the statutory respondents held that, after declaring the Society as defunct under Section 44(8) of the Act, the period provided for appeal also having lapsed, it would only lead to a situation where the defunct society’s registration stood cancelled automatically and therefore Section 40 of the Act could be invoked and a liquidator shall be appointed and for the aforesaid reasons, the writ petition was allowed.

6. The Writ Appeal is at the instance of the President of the “Marakanam Nadar Mahimai Paribalana Sangam, Marakkanam” (Reg.No.4/1960). The grievance of the appellant is that even the Society was not impleaded in the writ petition and when the Civil Suit is pending, there is no requirement for appointment of liquidator. Moreover, the 1st respondent Society has no locus to question the internal actions of the defunct Society. It is also contended that Sec