Andhra Pradesh High Court - Amravati
Dr.Raghavarao Polavarapu, vs The State Of Andhra Pradesh, on 21 December, 2021
1
* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION No.13192 of 2021
% 21st December, 2021
# Dr.Raghavarao Polavarapu and two others
... Petitioners
AND
$ The State of Andhra Pradesh rep. by its
Principal Secretary, Department of
Revenue, Secretariat Buildings,
Velagapudi, Amaravati and others.
... Respondents.
! Counsel for the Petitioners : Sri B.Adinarayana,
Senior Counsel.
^ Counsel for the respondents : Sri D.Prakash Reddy,
Senior Counsel.
Sri T.Niranjan Reddy,
Senior Counsel.
Sri Vinod Kumar Desh Pande,
Senior Counsel.
Sri S.S.Prasad,
Senior Counsel.
Government Pleader for
Cooperation.
< Gist:
> Head Note:
? Cases referred:
1) (2004) 11 SCC 247
2) AIR 1954 SC 207
3) (1998) 8 SCC 1
4) C.A.No.5121 of 2021 (03.09.2021)
5) AIR 2004 SC 3693
6) (1998) 1 KLT 136
7) (2021) 2 SCC 710
8) 2019 (1) ALD 196=Manu/Hy/0393/2018
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.13192 of 2021
ORDER:
This Writ Petition is taken up for hearing with the consent
of all the learned counsel. The petitioners before this Court
claiming to be the president, vice-president and treasurer of NRI
Academy of Sciences (in short "NRIAS"), a Society registered
under the Societies Act. They are aggrieved by the action of the
2nd respondent in acknowledging and approving the minutes of
a meeting dated 24.06.2021 conducted by the unofficial
respondents and at the same time rejecting the proceedings of
the meeting dated 24.06.2021 conducted by the petitioners. It
is this action of the 2nd respondent in accepting the minutes
etc., dated 24.06.2021 of the respondents and rejecting the
minutes of the meeting etc., dated 24.06.2021 of the petitioners
that is subject matter of the writ. The prayer is as follows:
"....to issue a writ, order or direction more
particularly one in the nature of "Writ of Mandamus"
declaring the action of the 2nd respondent in approving the
amendment of list of office bearers of the NRIAS Society vide
proceedings dated 26.06.2021 which are submitted by
Respondent Nos.4 to 10 without considering the
amendment application filed by the Petitioners herein on
24.06.2021 and rejecting the same as being illegal,
arbitrary, unilateral, in violation of provisions of Andhra
Pradesh Societies Registration Act, 2001, in exercise of
jurisdiction, in violation of principles of natural justice and
in violation of Articles 14 and 19 of the Constitution of India
and consequently set aside the proceedings dated
26.06.2021 issued by the 2nd respondent and further direct
the 2nd respondent to consider the amendment application
made by the petitioners dated 24.06.2021 and pass such
other order or orders as this Hon'ble Court deems fit and
proper."
This Court has heard Sri B.Adinarayana, learned senior
counsel for the petitioners. For the respondents learned senior
counsel Sri D.Prakash Reddy, learned senior counsel Sri T.
Niranjan Reddy, learned senior counsel Sri V.K. Desh Pande
and learned senior counsel Sri S.S.Prasad, appeared. The
learned Government Pleader appeared for the 2nd respondent.
All the learned senior counsel and the learned
Government Pleader appearing for the respective parties have
taken great pains and put in a lot of efforts in bringing to the
notice of this Court the facts and legal position with reference to
the case.
SUBMISSIONS OF SRI B. ADINARAYANA RAO, LEARNED
SENIOR COUNSEL APPEARING FOR THE PETITIONERS:
Learned senior counsel appearing for the petitioners drew
the attention of this Court to the important provisions of the
Andhra Pradesh Societies Registration Act, 2001 (in short "the
Act") and raised an issue about the manner and method in
which the 2nd respondent has approved the minutes, dated
24.06.2021, of the Extraordinary General Body Meeting dated
24.06.2021 held by the unofficial respondents while rejecting
the minutes etc., submitted by the petitioners. Learned senior
counsel submits that by this action and by specifically holding
that the minutes of the respondents' meeting are "approved",
the 2nd respondent had acted beyond his jurisdiction. Learned
senior counsel points out that simultaneously the 2nd
respondent has also "rejected" the minutes of the meeting
conducted by the petitioners. It is this action of the 2nd
respondent of approving and rejecting the documents file, which
is the subject matter of the Writ Petition.
Learned senior counsel drew the attention of this Court to
the order passed in W.P.No.2179 of 2021, wherein learned
single Judge clearly held in his order dated 29.01.2021 as
follows:
"In terms of provisions contained under Section 9 of the
A.P. Societies Registration Act, 2001, the District Registrar
of Societies has no competence to undertake scrutiny of the
particulars furnished to him, but is only required to note
the information furnished to him under Section 9 of the Act.
Respondent No.3 is, therefore, directed to receive the
annual list for the year 2019-20 and issue certified copies to
that effect and keep the information on website."
He also draws the attention of this Court to the order
dated 24.03.2021 passed in Writ Appeal No.50 of 2021 against
the order in W.P.No.2179 of 2021, wherein the prayer of the
appellants in I.A.No.1 of 2021 was dismissed. Hence the
learned senior counsel points out that by virtue of this Writ
Appeal order, the order dated 29.01.2021 has become final and
that impugned orders of the 2nd respondent are thus contrary to
the direction of this Court in W.P.No.2179 of 2021. Learned
senior counsel also argues that under Section 9 of the Act, the
2nd respondent could only receive the list of office bearers and
that he could not either approve or reject the same. He points
out from a reading of the language under Section 9 of the Act
that the 2nd respondent did not have the authority either to
accept or to reject the names. Learned senior counsel also
points out that the election and the list of office bearers that
have been circulated could only have been received and filed by
the 2nd respondent. Relying upon the byelaws of the
Association learned senior counsel argues that the term of the
office bearers is for the period of two years and that the existing
office bearers were elected for the said period of two years. The
term would not be curtailed by the respondents and it could not
also be "accepted" by the 2nd respondent. Learned senior
counsel submits that without prejudice to his primary
contention that under Section 9 of the Act, the 2nd respondent
did not have the jurisdiction the enter into the validity of any
election and / or either to accept or to reject it; that the
procedure followed by the unofficial respondents of giving a
notice and deciding to nominate new office bearers is contrary
to the byelaws of the Society. It is his contention that the
election of the Executive Members for the period ending
10.03.2022, what is called as residuary period, is contrary to
the byelaws of the society itself. Learned senior counsel also
points out that in AP Aboobaker Musaliar v District
Registrar (G), Kozhikode and others1 relied on by the
(2004) 11 SCC 247
respondents there is no ratio or a binding precedent. He points
out that this is merely an order passed in the peculiar facts and
circumstances of the case and that it does not lay down the law
in the strict sense. It is his contention that in view of the
counters filed by the respondents he is bringing all the facts to
the notice of this Court while reiterating his primary contention
that the power of the Registrar under Section 9 of the Act is
merely to file a list and to keep it on record. He also submits
that even if the 2nd respondent has the power to come to a
prima facie conclusion, he can do so after considering all the
documents that are available on the record. He points out that
no reasons are forthcoming why the list filed by the petitioners
is accepted but while rejecting the lists and the amendments
filed by the petitioners, the 2nd respondent has attempted to
give some justification. The learned senior counsel also
submits that if the 2nd respondent had considered all the
available data that is there he could have come to a different
conclusion. He also submits that the 2nd respondent should
have given a notice to the petitioners before rejecting their list of
Executive Committee Members and also minutes filed by them.
The sum and substance of the submission of the learned senior
counsel is therefore that under Section 9 of the Act the 2nd
respondent can only receive and file the lists etc., even if there
are two conflicting sets of minutes and lists of office bears. The
2nd respondent does not have the power either to accept or to
reject the lists. Even if he has such a power and if Aboobaker
case (1 supra) is treated as a binding precedent the impugned
orders are beyond his powers and are passed without
considering proper material or after giving a notice to the
petitioners.
FOR RESPONDENTS:
SUBMISSIONS OF SRI D. PRAKASH REDDY, LEARNED
SENIOR COUNSEL:
Sri D.Prakash Reddy, learned senior counsel appearing for
respondents 4 to 6 relied upon by the counter affidavit filed by
these respondents. He argued that there is no pleading about
the residuary period etc., which is a major submission made by
the learned counsel for the petitioners. He points out that the
Society is not a party to the Writ Petition and it is only the
Society that can raise an issue about the list that is filed. He
also argues that the Writ is not a proper remedy and that the
only remedy for the petitioner to invoke the jurisdiction of the
competent Court or the arbitrator under Section 23 of the Act.
He submits that there are no pleadings in the writ affidavit
about the matters argued. He also strongly argues that the
legal and factual pleas which are raised by the respondents are
also not answered by filing rejoinder. Therefore, learned senior
counsel submits that whatever is stated in the counter is
deemed to have been accepted. Learned senior counsel also
submits that when two sets of people approach a Registrar,
claiming to represent the society or if two lists of office bearers
are filed, the Registrar has the power to come to a prima facie
conclusion which of these two groups represents the Society
etc., and that his decision cannot be questioned in a Writ.
Relying upon the facts mentioned in the counter affidavit of
respondents 4 to 6, learned senior counsel points out that
seriously disputed questions of facts are present in this case
which cannot be decided in a writ. Relying upon an order
passed in W.A.No.1052 of 2017 learned senior counsel argues
that registrar had a duty to verify whether a "validly"
constituted meeting was there or not for accepting the lists and
the meeting minutes. He points out that the issues raised by
the respondents show that there is no proper quorum for the
meeting called for by the petitioners and that the manner in
which proxies were accepted and former members who resigned
were inducted again is totally incorrect is also very doubtful.
Relying upon the byelaws learned senior counsel argues that
meeting on which the petitioners relied upon is not validly held
and the resolutions are not validly passed. He relies upon the
detailed counter affidavit which has been filed by the
respondents 4 to 6 to show that their meeting correctly
deliberated and accepted the proceedings (para 5 to 12) and
that the rejection proceedings are also correct. Learned senior
counsel also points out that respondent No.2 had the discretion
to apply his mind to come to a conclusion whether the general
body meeting is validly conducted or not. Learned senior
counsel argues that in view of the case law relied upon by him,
in particular W.A.No.1052 of 2017 and the case of Aboobaker
case (1 supra), a discretion is conferred on the 2nd respondent
to come to a conclusion that a valid meeting was held before he
could accept or reject the minutes and the resolutions which
are filed by the competing parties. Learned senior counsel also
argues that in the absence of valid pleadings no arguments
could be advanced. He submits that the prayer is not clear and
that there is a doubt whether a "second list" is actually
submitted by the petitioners at all. Learned senior counsel lays
great stress upon the order passed in W.A.No.1052 of 2017 on
01.08.2017, wherein the Division Bench has held that it is
obligatory upon the party approaching the Registrar to prove
that a valid General Body Meeting was held. Therefore, learned
senior counsel argues that the 2nd respondent was well within
his powers in considering whether the valid General Body
Meeting was held or not. Case law is also relied upon by the
learned senior counsel to argue that there should be adequate
pleading before an argument is advanced before this Court.
Some factual aspects are left to the other counsels to argue by
the learned counsel to save the time of the Court.
SUBMISSIONS OF SRI S.S.PRASAD, LEARNED SENIOR
COUNSEL:
Sri S.S.Prasad, learned senior counsel appears for the 8 th
respondent also argues on similar lines and submits that the
action of the 2nd respondent cannot be doubted or questioned,
more so in a proceeding under Article 226 of the Constitution of
India. Learned senior counsel submits that the Registrar has
merely accepted a set of minutes which have been filed by the
respondents but he has not decided on the validity of the lists /
the minutes or the meetings. He states that it is not a final
decision and as per Aboobaker case (1 supra) the decision,
can be questioned under Section 23 of the Act. He states that
there is no plea before this Court to show that the reasons
mentioned in the endorsement are not correct. As per him the
reasons given by the 2nd respondent are supported by
documentary evidence. Learned senior counsel points out that
new members were sought to be inducted as office bearers /
executive committee members had already resigned from their
posts and the same was accepted by the petitioners. He points
out that when the meeting convened by the respondents was to
start at 6.30 a.m., on 24.06.2021, the petitioners have
convened a meeting at 5 a.m., on 24.06.2021. In addition, they
also claimed that on 21.06.2021 they have removed the
Secretary representing the second group. Therefore, learned
senior counsel submits that the conduct of the petitioners is
doubtful. Learned senior counsel also submits that when there
are two groups of people, who are claiming to represent the
society and two separate sets of papers and lists are filed, the
2nd respondent had the power / authority to accept one set of
papers filed by one group and reject the other. If the other
group is dissatisfied they have to follow the procedure under
Section 23 of the Act. Learned senior counsel also submits that
the alternative remedy that was available is also invoked by
filing an arbitration application by the petitioners. He also
relies upon the list of precedents which are filed by him to
argue that even if Section 9 of the Act does not expressly confer
the power to accept or to reject a list, the Courts have held that
all incidental and ancillary powers are conferred on the
Registrar to accept or to reject the list. Therefore, learned
senior counsel on the basis of compilation of case law and a
small factual note which is filed by him argues that the
necessary parties are not joined; the exercise of power by the
Registrar cannot be questioned and it is always subject to final
decision on the matter as per Aboobaker case (1 supra) and
that the power that is exercised by the Registrar cannot be
questioned in a proceeding under Article 226 of the
Constitution of India.
SUBMISSIONS OF SRI VINOD KUMAR DESH PANDEY,
LEARNED SENIOR COUNSEL:
The next set of submissions made by Sri Vinod Kumar
Desh Pande, learned senior counsel appearing for the 9th
respondent. He submits that in the counter that they have filed
all the factual issues which would go to show that the meeting
conducted by the petitioners is not valid. He did not, therefore,
wish to repeat those submissions and states that he adopts the
submissions of the learned counsel who preceded him. He
essentially argues on the existence of an effective alternative
remedy to the petitioners viz., availability of a dispute to be
raised before an arbitrator as per Section 23 of the Act or to
approach the Court as stated in Section 23. Learned senior
counsel argues that as per Section 23 of the Act the petitioners
have a remedy for raising a dispute under the provisions of the
Arbitration and Conciliation Act, 1996 or to file an application
before the Court concerned. Learned senior counsel, therefore,
argues that since there is an effective alternative remedy, which
has already been invoked by the petitioners by filing ARB
O.P.No.59 of 2021, they are precluded for raising these issues
before this Court. He points out that from a reading of the case
law that is filed as a compilation that the Writ is not at all
proper remedy. Relying upon K.S.Rashid and son v The
Income Tax Investigation Commission etc., 2 and other cases
on similar lines learned senior counsel argues that once there is
an effective alternative remedy this Court should not entertain
the Writ. Relying upon Whirlpool Corporation v Registrar of
Trade Marks, Mumbai & Others3 learned senior counsel
argues that a Writ is only maintainable overlooking the
alternative remedy when there is (a) infringement of a
fundamental rights, (b) where the order or proceedings without
jurisdiction or ultra vires (c) when there is a violation of
principles of natural justice etc. Learned senior counsel points
out that none of these contingencies arise in this case for the
Writ to be maintainable. He also relies upon the Judgment in
The Assistant Commissioner of State Tax & Others v M/s
AIR 1954 SC 207
(1998) 8 SCC 1
Commercial Steel Limited4 to point out the four exceptional
circumstances under which the writ lies when there is an
alternative remedy are (1) breach of fundamental rights, (2) a
violation of the principles of natural justice (3) an excess of
jurisdiction; or (4) a challenge to the vires of the statute or
delegated legislation. Learned senior counsel points out that
these four circumstances do not exist in this case. In all other
aspects he adopts the arguments of learned senior counsel
arguing the matter before him.
SUBMISSIONS OF SRI T. NIRANJAN REDDY, LEARNED
SENIOR COUNSEL:
Learned senior counsel Sri T.Niranjan Reddy appears for
the 10th respondent. He also draws the attention of this Court
to the counter affidavit that has been filed by him and also
argues on merits to state that acceptance also includes the
power to reject and to submit that the actions of the 2nd
respondent are correct in the facts of this case. It is his
contention that the statutory power conferred on the Registrar
as per Sections 9, 11, 14 and 20 of the Act has been validly
exercised by the Registrar. Learned senior counsel also points
out that the petitioners have not approached the Court with
clean hands and have suppressed various facts and attempted
to play fraud on the Registrar. He points out that as per
C.A.No.5121 of 2021 (03.09.2021)
definition of a 'Member' in the 2001 Act a person who ceases to
be a Member cannot participate in the meeting. The fact of the
resignations of many of the people, who are now sought to be
brought into the Committee by the petitioners has resigned, has
been suppressed by the petitioners. He points out that on
04.01.2021 the resignations of Dr.Ravindra Alapati, Smt.
Savitri Devi Bikkina, Dr.Mahesh Bikkina, Sri Sai Ramesh
Bikkina and Dr.Veeragandham Venkata Subba Rao, have been
accepted by the Society in a General Body Meeting. Learned
senior counsel also draws the attention of this Court to the
minutes of the meeting dated 20.11.2020 where the issue of
resignation of these members was again considered and as they
did not dispute the same the resignations were accepted. He
also submits that the meeting convened by the petitioners is not
valid as there is no "quorum" and that resigned members
cannot be counted for the "quorum". Lastly, learned senior
counsel points out that valid invitations were extended to 10
members, whose names are found in the minutes of the
Executive Committee Meeting dated 01.12.2020, and to become
the members of the Society. Learned senior counsel points out
that all these facts are in the knowledge of the petitioners. He
points out that these issues have already been raised in
paragraphs 4 to 7 of the counter affidavit filed. Learned senior
counsel points out that these issues were considered by the 2 nd
respondent in coming to a conclusion that eight members are
not in the list of members of the society as per the previous lists
which were submitted to the Registrar. In addition, it is also
noticed that the appointment of the proxies for the four
members, who were considered in the petitioner's list, are also
not forthcoming. Therefore, learned senior counsel submits
that after considering the relevant data and applying his mind
to the facts of the case the 2nd respondent has passed necessary
orders. Learned senior counsel points out, therefore, that the
2nd respondent had "material" before him to come to a
conclusion on the issue raised. In the alternate he also points
out that relying upon the judgment of the Aboobaker case (1
supra) that this is a preliminary finding only which is based
upon the material papers before the Registrar. The aggrieved
party has to follow the Section 23 procedure to challenge the
same if they are dissatisfied. In other aspects learned senior
counsel also submits that the rejoinder is not filed to the
counter affidavit, that the society is not a party before this
Court and that the prayer made in the Writ Petition is not
actually challenging the order passed under Section 9 of the
Act. The factual aspects which are argued by the learned senior
counsel are in line with the submissions made by the other
learned senior counsels also. Sri Niranjan Reddy lays emphasis
on the suppression of facts to argue that the petitioners did not
bring to this Court's notice about the resignations of the
persons, they are seeking to induct as Executive Committee
Members. He also submits that only a person who approaches
the Court with clean hands is entitled to the relief. He lays
stress on the prayers made and argues that the petitioners have
not challenged the rejection of their list under Section 9 of the
Act. He argues that there should be a clear and precise
pleadings before an order is sought from this Court.
SUBMISSIONS OF LEARNED GOVERNMENT PLEADER:
Learned Government Pleader for Revenue and Stamps and
Registration appears for the 2nd respondent. Relying upon the
counter affidavit filed he argues that the exercise of power by
the 2nd respondent is correct. He points out, in particular to
paragraphs 1 to 4 of his counter affidavit to argue that the
Registrar considered the documents, which are filed with him to
come to a conclusion that the list filed by the respondents is
correct list. He contends that the eight people who voted in the
meeting, dated 24.06.2021, in the list submitted by the
petitioners are not existing in the list of General Body Members
of the society that was filed with the Registrar. Therefore,
considering the data that is available; the 2ndrespondent
rejected the list of office bearers filed by the petitioners.
Learned Government Pleader also argues that Rule 9(a) and 9
(b) of the byelaws were flouted and the Registrar considered the
same as "the due procedure was not followed". Learned
Government Pleader drew the attention of this Court to the
documents, which are filed along with his counter affidavit, in
particular, pages 79, 81, 101, 106 to 110 to argue that available
material supported the decision taken by the 2nd respondent.
He submits that "approved" and "rejected" are used in a limited
context of receiving / rejecting the documents filed. Therefore,
learned Government Pleader justifies the action of the 2nd
respondent.
REJOINDER:
In rejoinder, learned senior counsel for the petitioners in
stresses the fact that all the issues raised by the learned senior
counsel are not very germane or necessary to decide the issue
raised in this Writ. He falls back on his submissions of the
limited power of the Registrar under Section 9 of the Act.
Without prejudice he submits on the facts raised and argues
that there is a second list of office bearers which is submitted.
He points out that the counters filed by the respondents clearly
show that the resignations are not finally accepted. The
resignations were considered by the General Body and referred
to the Executive Committee which in turn again referred the
matter to General Body and they were not finally ratified.
Therefore, he submits that eight people continue to be valid
members. In addition, learned senior counsel submits that
SOP No.1 of 2019 is already pending and the issue is not final.
He also points out that the case law on incidental and ancillary
powers is in reference to statutory authorities who have quasi-
judicial or adjudicatory powers like CEGAT, National Consumer
Disputes Redressal Commissionetc., and not to the limited
power conferred upon the Registrar in this case as per this
particular Act. As per the learned senior counsel if two lists are
filed the only option available with the Registrar is to file them
and that the parties are free to use the dispute resolution
mechanism under Section 23 of the Act. Learned senior
counsel submits that the power of approval plus rejection in
this case is an "adjudicatory power" which has been assumed
by the Registrar. Even if said powers are said to be available
counsel submits that a notice must be given to the petitioners
before taking a final decision on the matter.
Lastly, learned senior counsel submits that the "conduct"
is relevant in cases of people seeking an equitable relief like in
specific performance. But the said case law or conduct is not
really applicable to the facts in the present case. Learned
senior counsel submits that the prayer in the Writ Petition
questions both the acceptance and the simultaneous rejection
of the lists that are submitted by both the parties. Therefore,
he states what is questioned are the proceedings of the 2nd
respondent in approving the lists submitted by the 4th
respondent to 10th respondent while rejecting the amendment
application submitted by the petitioners.
COURT:
After considering all the submissions made this Court
notices that learned senior counsel appearing for the
respondents have raised very serious factual issues. The
counters filed by the contesting respondents raised a number of
factual issues including a major issue about the eligibility of the
eight members who are now included in the petitioner's list. It
is the contention of virtually all the learned senior counsel
appearing for the respondents that eight of the members who
have resigned and whose resignations are accepted are now
sought to be once again inducted in the list submitted by the
petitioners as executive members. Their right to participate in
the meeting dated 24.06.2021 conducted by the petitioners and
their presence for deciding the "quorum" is a serious dispute
that is raised by the respondents. Consequently, it is argued
that the Registrar was right in his decision to reject the
submissions of the petitioners. This Court while exercising
power under Section 226 of the Constitution of India cannot go
into the very seriously disputed questions of fact about the
acceptance of resignation and/or the correctness of the
resolutions that are passed consequently. They also seriously
question the readmission of these members and the procedure
followed. They question the timings of the meetings; the notices
etc., and the decisions. However, for the purpose of deciding
the essential issue raised namely the power under Section 9 of
the Act this Court need to look into the entire gamut of factual
issues that are so forcefully raised and presented. These are all
disputed issues which have to be decided in an appropriate
forum.
1) THE 2001 ACT AND ITS PROVISIONS:
For the purpose of deciding the issues raised in the
current Writ Petition about the Registrar's power to accept /
reject this Court is proposing to examine the provisions of the
Andhra Pradesh Societies Registration Act-2001. If the Act is
examined broadly it is clear that Chapter-II of the Act deals with
Registration of Societies, Chapter-III of the Act deals with the
management and administration, Chapter-IV of the Act deals
with the disputes, resolution and winding up.
In Chapter-II of the Act Section 3 deals with the
Registration of a Society.
"3. (1) Any seven or more persons forming a society which
has for its object the promotion of art, fine art, charity,
crafts, religion, sports (excluding games of chance) ,
literature, culture, science , political education, philosophy
or diffusion of any knowledge or any public purpose may be
registered under this Act.
(2) No society of which a firm, whether registered or not or
an unincorporated association of individuals is a member
shall be registered under this Act.
(3) Nothing contained in Sub-Section (2) shall preclude the
registration under this Act of a Society on the ground that a
partner as defined in section 4 of the Indian Partnership
Act, 1932, or a member of an unincorporated Association of
individuals is, in his individual capacity, a member of the
society."
Section 4 deals with the Memorandum and byelaws:
"Section 4 - Memorandum of Association of society, and
Bye-laws to be filed with Registrar:
(1) For the purposes of registration of a society there shall
be filed with the Registrar of the district in which the
registered office of the society is to be situated,--
(a) a memorandum of association of the society which shall
state,--
(i) the name of the society;
(ii) the aims and objects of the society;
(iii) the names, addresses and occupations of the members
of the committee; and
(b) the bye-laws of the society.
(2) The memorandum of association shall be signed by
atleast seven members who are majors and who shall add
their addresses, description and occupation if any, in the
presence of atleast two witnesses who shall also be majors
and who shall attest with their signatures and add their
addresses, description and occupation, if any and the bye-
laws shall be signed by the signatories to the
memorandum of association." (Emphasis supplied)
Section 5 of the Act deals with the contents of the byelaws
of the Society.
"Section 5 - Contents of bye-laws of societies
The bye-laws of a society shall contain provisions in respect
of following matters:
(i) identity of the society which includes name and address
particulars of the society;
(ii) activities of the society;
(iii) membership of the society i.e., eligibility, admission,
withdrawal and termination etc. ;
(iv) General body which contains the manner of meetings to
be held or convened, quorum, functions and responsibilities
etc.;
(v) office bearers and their appointment/election
/removal/recall and their responsibilities etc. ;
(vi) finances which includes types of funds to be raised,
appointment of auditors, liability of members for discharge
of debts etc.; and
(vii) other matters which cover the internal matters of
settlement of internal disputes, dissolution of the society etc."
(Emphasis supplied)
Section 6 of the Act states that the Society cannot be
registered with certain names. Section 7 of the Act deals with
the Registration of the Society.
"Section 7 - Registration of Societies
(1) Where a society has complied with the provisions of the
Act as to registration and on payment of such fees as may
be notified under Section 29, the Registrar shall issue to
that society a certificate of registration and such certificate
shall be conclusive evidence that the society therein
mentioned is duly registered.
(2) The Registrar shall, after the issue of a certificate of
registration to a society enter in a register which may
include a register maintained through an electronic device
like computer, the particulars specified in the
memorandum, of that society filed and such other
particulars as may be notified.
(3) If the Registrar refuses to register a society, an appeal
shall lie to the Registrar General within sixty days from the
date of communication of the order of the Registrar refusing
to register the society. Every such appeal shall be
accompanied by a fee as may be notified by the Government
from time to time.
(4) If an application for registration of a society is presented
before the Registrar complying with all the provisions of this
Act is not disposed of within sixty days the society is
deemed to have been registered and the Registrar shall
issue a certificate to that effect."
If a society complies with the provisions of Sections 3 to 6
of the Act the Registrar "shall" issue the certificate of
Registration. If the Registrar refuses to register the Society an
appeal shall lie to the Registrar General. Therefore, the
provisions of Section 7 of the Act give a "discretion" to the
Registrar to accept or refuse the Societies. If he refuses to
register a Society an appeal lies under Section 7 (3) of the Act to
the Registrar General from the order of the refusal. This is one
area where the Registrar is given a power to accept or not to
accept for registration.
Similarly, under Section 8 of the Act an amendment of
Memorandum of bye laws is permitted. Under Section 8 (4) of
the Act, the Registrar has the "discretion" to reject the
amendments if they are not in conformity with the provisions of
the Act Section 8(5) of the Act states every alteration in byelaws
of the Society should be sent to the Registrar and he shall take
it on record if it is not contrary to the provisions of the Act. The
section is reproduced here:
"Section 8 - Amendment of memorandum and Bye-laws
(1) By a "Special Resolution" a society may alter the provisions of the
memorandum with respect to--
(a) change of objectives of the society;
(b) to amalgamate itself with any other society; or
(c) to divide itself into two or more societies.
(2) Subject to the provisions of this Act, and the conditions contained
in its memorandum, a society may, by an ordinary resolution passed
by not less than 1/2 (half) of the members present and voting alter
its bye-laws.
(3) Any alteration of the memorandum of the society shall not be
valid unless such alteration is registered under this Act.
(4) If any alteration of the memorandum is filed with the Registrar
and if they are not contrary to the provisions of this Act, he shall
register the same and shall certify the registration of such alteration
under his hand and seal within thirty days from the date of receipt of
the resolution. The certificate shall be conclusive evidence that all
the requirements of this Act with respect to the alteration and the
certification thereof have been complied with and henceforth the
memorandum as so altered shall be the memorandum of the society.
(5) Every alteration in the bye-laws of the society should be sent to
the Registrar and he shall take it on record if it is not contrary to the
provisions of this Act."
Therefore, a reading of the provisions of the Act viz.,
Sections 3 to 8 show that a discretion is vested in the Registrar
to accept the registration of the Society (if it is not in
contravention with the Sections 3, 4, 5 or 6 of the Act) and to
accept an amendment which is not in contravention with the
other provisions of the Act. In the opinion of this Court under
these scenarios and under these sections only there is a limited
discretion given to the Registrar Under Section 8 (4) and (5) of
the Act the Registrar can only take on record the alteration if it
is not contrary to the Act.
When it comes to Section 9 of the Act it is apparent that
there is no discretion cast upon the Registrar. Section 9 of the
Act is as follows:
"9. Every year the society shall, within fifteen days
from the date on which the General Body meeting was held
furnish a list to the Registrar of societies which shall contain
the names and addresses of the members of the Managing
Committee and officers entrusted with the management of
the affairs of the society."
No power to accept or reject or do anything else is given to
the Registrar. A reading of Section 8 and 9 makes it very clear.
This is the first finding of this Court based upon the plain
language interpretation of Sections 3 to 9 of the Act and by
considering the scheme of the Act.
2) APPROVED / REJECTED:
In the case on hand the Registrar has "approved" one set
of resolutions and "rejected" another set of resolutions. These
are stamped / mentioned on the documents. The additional
material papers filed by respondents 4 to 6 contained an extract
of the Advanced Law Lexicon by P.Ramanatha Aiyar. The word
"approve" as per the definition at page No.317 means "to accept
as good or sufficient for the purpose intended" and "to give formal
sanction to or to confirm authoritatively". Relying upon State
(Anti-Corruption Branch), Government of NCT of Delhi and
another v Dr.R.C.Anand and another5 the word "approve" is
said 'to have or express a favourable opinion; to accept as
satisfactory' (Para-11). Similarly, the same Law Lexicon defines
the "reject" as "to refuse to hear or receive or admit". Therefore,
etymologically also the words "approved" or "reject" convey a
sort of 'quasi-judicial' determination of the lists / documents
filed. It is not merely receiving or filing of documents, it
involved a decision with certain reason to reject one filing and
to accept another fling of documents (albeit without reasons).
Further aspects of this are dealt with later in this order.
3) ABOOBAKER CASE:
The argument of the Learned Senior Counsel for the
petitioner is that the judgment in Aboobaker case (1 supra) is
merely an "order pronounced" in the peculiar facts and
circumstances of this case and is not the judgment in the true
sense of the word with a discernable ratio.
This Court has to respectfully state that Aboobaker case
(1 supra) cannot be treated as a biding precedent in these facts
for the following reason:
The A.P. Societies Registration Act, 2001 was passed by
repealing the 1860 Act in its applicability to A.P.
specifically discretion was conferred on the Registrar
under certain sections only (like Sections 7 (3); 8 (5) of
AIR 2004 SC 3693
the Act) but no discretion was given under Section 9 of
the Act. Even though there are broad similarities
between Section 9 of this 2001 Act and Section 4 of
1860 Act in view of the overall scheme of the 2001 Act
and the language of Sections 7, 8 vi a vis Section 9 of
the Act. This Court holds that Aboobaker is not
applicable in the present scenario / facts.
All the learned senior counsel appearing for the
respondents relied upon the decision in Aboobaker case (1
supra). In this decision the Hon'ble Supreme Court of India
held that the Registrar had a discretion to come to a "prima
facie" conclusion. Even if the argument of the learned Senior
counsel for petitioner is overlooked and this judgment is taken
as binding precedent, the question that still arises for
consideration is whether the Registrar exercised his mind
properly in accepting the documents submitted by the
respondents and rejecting the documents submitted by the
petitioners.
A reading of the documents which are filed would show
that the respondents have filed documents with
acknowledgment No.15298668620210624 on 24.06.2021 at
00.00 hours and once again with No.15298681420210625 on
25.06.2021 at 6.34 hours. The first document with final
No.0624 was rejected on 26.06.2021 at 12.52 hours. The
second document with final No.0625 was rejected on
26.06.2021 at 13.49 hours. It can be seen that the decision
was taken during the office hours i.e., probably after 10 a.m.,
on 26.06.2021. In this interim period there is no proof filed
that the 2nd respondent has given notice to the petitioner before
coming to any conclusion about the correctness of their
submission. A plea of failure to follow rules of natural justice
was fleetingly raised in the writ but the issue was argued during
the submissions and also replied too. This however is a fact
visible from the record. Before considering his office records
(about which more is mentioned later) the 2nd respondent did
not call for comments from the parties. In the judgment
reported in C.MZ.Musliar v Aboobacker6 it is apparent that
the 1st respondent called both parties before accepting one list.
This later went to the Hon'ble Supreme Court of India and is
the Aboobaker case (1 supra).
The judgment relied upon by the learned counsel for the
petitioners in Harshit Agarwal and Others v Union of India
and others7 in paragraph 10 held as follows:
"10. Judicial review of administrative action is permissible
on grounds of illegality, irrationality and procedural
impropriety. An administrative decision is flawed if it is
illegal. A decision is illegal if it pursues an objective other
than that for which the power to make the decision was
conferred [De Smith's Judicial Review, (6th Edn., p. 225)].
There is no unfettered discretion in public law [Food Corpn.
of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC
71] . Discretion conferred on an authority has to be
(1998) 1 KLT 136
(2021) 2 SCC 710
necessarily exercised only for the purpose provided in a
statute. The discretion exercised by the decision maker is
subject to judicial scrutiny if a purpose other than a
specified purpose is pursued. If the authority pursues
unauthorised purposes, its decision is rendered illegal. If
irrelevant considerations are taken into account for
reaching the decision or relevant considerations have been
ignored, the decision stands vitiated as the decision maker
has misdirected himself in law. It is useful to refer to
R.v.Vestry of St. Pancras [R. v. Vestry of St. Pancras, (1890)
LR 24 QBD 371 (CA)] in which it was held: (QBD pp. 375-
76) (Emphasis supplied)
"... If people who have to exercise a public duty by
exercising their discretion take into account matters which
the courts consider not to be proper for the guidance of
their discretion, then in the eye of the law they have not
exercised their discretion." (Emphasis supplied)
Against the backdrop of these two decisions the exercise
of "discretion" by the Registrar is being examined by this Court.
As rightly pointed out by the counsels no reasons are
forthcoming for acceptance of the list filed by the respondents
at 14.07 hours on 26.06.2021. Some reasons are, however,
forthcoming for the rejection of the lists filed by the petitioners
at 12.52 hours and 1.49 p.m. on 26.06.2021. However, this
Court finds from the documents filed by the 2nd respondent
himself that the Registrar (a) looked into documents which are
not needed to be filed and (b) did not consider all the issues and
facts which actually had to be considered. He did not apply his
mind in the opinion of this Court to the relevant facts which are
as follows:
a) In W.P.No.2179 of 2021 the direction issued to him
clearly stated that he had no competence to undertake scrutiny
of the particulars furnished to him but is only required to note
the information furnished to him. This order was challenged by
some affected parties in W.A.No.50 of 2021 along with I.A.No.1
of 2021. The said Writ Appeal was dismissed on the ground
that the prayer in the Writ Appeal is similar to the prayer made
in the SOP No.1 of 2021, pending before the PDJ Court,
Krishna District. The Division Bench clearly held that the
petitioners in the Writ Appeal are questioning their resignation
from the membership of the society in the General Body
Meeting held on 11.03.2020 and the subsequent execution
meetings held on 20.11.2020, dated 01.12.2020 and
22.12.2020. These are also filed at pages 81, 94, 101 and 103
of the counter filed by the 2ndrespondent himself. These
documents are available with the 2nd respondent-Registrar. In
the opinion of this Court when two lists are filed and the
available data of documents show that the resignation of the
members, who are now stated to be included in the petitioner's
list is the subject matter of a legal dispute the Registrar has a
duty to consider all of them. A reading of the facts would show
though these disputed issues were not considered by the
Registrar. As the Writ Appeal is dismissed, the order of the
learned single Judge, dated 02.01.1979 continues to hold the
field. Therefore, this Court has to hold that the Registrar did
not consider the available material to come to even prima facie
conclusion. He did not even issue a notice to the parties
seeking any clarification on these issues.
b) The second issue here is about the records that the
Registrar is expected to have and the records he is said to have
considered for coming to a decision. Section 9 of the Act states
that every year the Society shall within 15 days of the General
Body Meeting furnish the list to the Registrar "which shall
contain the names and addresses of the Members of the
Managing Committee and officers entrusted with the
management and the affairs of the Society." Therefore, the list
that has to be furnished should contain the names and
addresses of the members of the Managing Committee and the
office bearers only. No other document is required to be filed.
The Managing Committee is defined under Section 2 (c) of the
Act. Section 14 of the Act deals with the Committee. Section
14 (3) of the Act states that every Society shall file with the
Registrar a copy of the register in which the names, addresses
and occupations of the Members of the Committee are
mentioned. The bye laws of the society as per Section 5(iii) of
the Act should also contain the provisions of the membership of
the society i.e., eligibility, admission, withdrawal, termination
etc., and also the details of the office bearers and their
appointments, election etc. The other provisions of the Act do
not mandate the filing of the minutes of the Annual General
Body Meeting, list of all the members of the Society, their right
to vote, the proxies on the basis of which some members voted
etc. In the case on hand the Registrar has considered the
documents, which are not required to be filed as per the statue.
The General Body list, which he has considered, is as per the
order of the Court in W.P.No.2172 of 2021 and some
justification can be given for this document. But the Registrar
went on to reject the documents filed by the petitioners holding
that the Members, who are now admitted were not in the list of
members for the earlier years and also the letter of appointment
of proxies in respect of four members not forthcoming in the
minutes submitted.
c) The statute makes it very clear that what has to be
filed before the Registrar is only list which shall contain the
names and addresses of the Members of the Managing
Committee and the officers entrusted with the Management
(Section 9 of the Act). Again as per Section 14 (3) of the Act a
copy of the register showing names, addresses and occupations
of the Members of the Committee should be filed with the
Registrar. These are only documents, which are mandated to
be filed by this Societies Registration Act, 2001. Hence, the
Registrar was under an obligation to consider these documents
alone if he wished to come to a prima facie conclusion as per
Aboobaker case (1 supra). Instead of doing so as required
under the Act he has considered other documents etc., which
are not required to be filed with him. On this ground also this
Court holds that he has considered the documents, which are
irrelevant while ignoring the relevant documents.
d) Even the rejection of the amendment made by the
2nd respondent is incorrect. An amendment need not be
accepted only if it is contrary to the Act (Section 8 (5) of the
Act). The 2nd respondent did not reject the amendment on this
ground but held that it is contrary to amended clause 9 (a) of
the amendment (Bye law) only. He did not refer to or
discussion about the provisions of the Act at all.
e) Therefore, in line with the judgment in Harshith
Agarwal's cases (7 supra) this Court has to hold that for
coming to this conclusion also the Registrar did not exercise the
discretion properly or validly. The decision making process is
flawed in this case. There is irrationality and also procedural
impropriety.
3) VALID MEETING UNDER SECTION 9:
It was also argued by the learned senior counsels,
particularly Sri D. Prakash Reddy that the judgment in
W.A.No.1052 of 2017 gives the discretion to the Registrar to
consider whether a valid General Body Meeting was held or not.
Therefore, it was argued that the Registrar was right in
considering the earlier data. The judgment in W.P.No.3573 of
2017 has to be read along with the judgment in the Writ Appeal
to understand it in its proper perspective. In W.P.No.3573 of
2017 the facts are that (a) a committee held a meeting dated
17.02.2016 and elected Executive Committee Members.
Thereafter on 05.12.2016 a resolution was passed to the effect
that the minutes of the meeting dated 17.02.2016 shall be
submitted to the 2nd respondent Registrar. When they were
submitted the 2nd respondent did not receive the same.
Learned single Judge held that under Section 9 of the Act the
2nd respondent was bound to receive the same. This matter
went in Appeal. In the Appeal it was pointed out that no
meeting was held on 05.12.2016 and that as there was no
quorum a meeting was postponed / to be held on 06.12.2016.
Learned counsel, therefore, pointed out if there was a validly
constituted meeting held on 05.12.2016 then the Registrar was
bound to consider the same. It was in this context that the
Division Bench held that it was obligatory on the part of the
petitioners to establish that a "valid" meeting was held on
05.12.2016. Therefore, the Division Bench held that as the
petitioners failed to prove that the valid meeting was held on
05.12.2016 the order under appeal has to be set aside. It was
in these circumstances that the DB was pronouncing on the
need for validly held meeting.
In the compilation of case law filed this Court also notices
that the Division Bench judgment of A.P. High Court reported in
Mokkapati Chandra Sekhara Rao v Pragathi Educational
Society, Guntur District and Other8 wherein, the Division
Bench clearly held that the Registrar does not have the power to
2019 (1) ALD 196=Manu/Hy/0393/2018
adjudicate any controversy or dispute arising out of the
contents of the material so filed. In paragraphs 7 and 9 it is
clearly held that in terms of Section 9 of the Act, the Registrar
had no jurisdiction to decide any dispute between any of the
members of the Society or any group of members, and the
appeals were ordered giving a direction to the Registrar not to
decide any dispute relating to the contents and details
furnished by other side (para-12).
In fact, all though very detailed arguments were advanced
para-9 of the counter affidavit filed by respondents 4 to 6 which
is as follows also supports this view.
"....The Respondent No.2's role under S.14 (3) is a
ministerial function to simply take the information
regarding the new membership of the Executive committee
on record, akin to its role under S.9. Thus, Respondent
No.2 rightly, accepted the Society's application and took the
new membership of the Executive Committee on record."
This plea supports the view taken by the Division Bench
in the above decision and the petitioners submissions.
4) NECESSARY PARTY:
One other point that has been repeatedly raised is that
the society is not a party to the Writ. The dispute before this
Court is about "membership". Both the petitioners and the
unofficial respondents are claiming to be members of the
Society and are fighting before this Court for their rights. The
rejection by the Registrar of the lists / documents is the subject
matter of the challenge. In the opinion of this Court, the
presence of the Society will not make a vital difference for the
decision in this particular lis. The action of the Registrar in not
recognizing the petitioners meeting and recognizing the
respondents meeting is the subject matter of the challenge.
Therefore, this Court holds that the presence of the Society is
not absolutely necessary for a disposal of this particular case.
The society in the opinion of this Court is not necessary party
for the adjudication of the present dispute. The matter can be
disposed of without the Society being a party. The issue raised
by the individual petitioners is about the rights of the members
of the society. The rights including the right to receive notices;
to participate in the management meetings etc. If this right of
the petitioners is curtailed and they are not held to be valid
office bearers / Executive Committee Members etc., they have a
right to approach this Court and seek relief on their own since
the action of the Registrar is being questioned.
5) ALTERNATE REMEDY AND WRIT:
The last issue that has been raised is about the existence
of alternative remedy and the invocation of the Arbitration. The
dispute in this case emanates from the simultaneous orders
passed by the Registrar accepting / approving one list and
rejecting the other list. It is this action of the 2nd respondent
that is subject matter of this Writ. This cannot be questioned
in "arbitration" as the Registrar cannot be a party to the dispute
before the Arbitrator. As per section 23 of the Act the dispute
between the members of the Society on the Committee or the
members of the Society in respect of any matter relating to the
affairs of the Society can be resolved by arbitration. In the
byelaws of the association it is specified that in case of any
dispute relating to the affairs of the academy among members
of the academy or in the interpretation of the regulations such
dispute shall be referred to the arbitration. Therefore, this
Court is of the opinion that there is no effective alternative
remedy for deciding on the correctness of the Registrar's action
and the Writ Petition is the proper remedy in the
circumstances. Even otherwise as stated in the preceding
paragraphs since the Registrar has not applied his mind and
has not considered the relevant material, this Court is of the
opinion that a writ petition is maintainable. This is also a self
imposed restriction by courts while deciding Writ Petition and is
not an absolute rule or an embargo. Since this Court finds a
non-application of mind / incorrect exercise of jurisdiction and
a failure to give notice etc., by the Registrar, this Court holds
that a Writ is maintainable.
6) INCIDENTAL POWER:
Case law was also cited to argue that the power to accept
one list and to reject another is an "incidental power" which
need not be conferred expressly. This Court finds that most of
these cases relate to quasi-judicial authorities; tribunals etc.,
which need these incidental powers to effectively discharge their
function. The Societies Registration Act, 2001 does not give
such a power to the Registrar under Section 9 of the Act. The
difference in the language used in Section 8 (5) of the Act and
Section 9 of the Act is a clear pointer in this direction. Lastly
even if such power is there; this court finds that the Registrar
did not exercise his power properly and that the decision
making process is flawed, warranting judicial interference.
CONCLUSION:
Therefore, for all the above mentioned reasons this Court
finds that the Registrar erred in giving an endorsement
"accepting" the document filed by the unofficial respondents
and "rejecting" the document filed by the petitioners. The
statements that the petitioners' documents are "rejected" and
that the respondents' documents are "admitted / accepted" are
both wrong in the opinion of this Court. Even the reasons
furnished by the Registrar for coming to a conclusion are
erroneous and contrary to law. Therefore, the prayer in Writ
Petition is partially allowed. This Court holds that the Registrar
has no power either to "accept" or to "reject" an annual list filed
under Section 9 of the Act. He can only acknowledge its receipt
and file the same. A Mandamus is issued against the
acceptance of one list while rejecting the other. Since there are
seriously disputed questions on fact and law in this Writ
Petition, this Court is not entering into those areas. Therefore,
the other prayers made are rejected. The parties are left to
choose their own options and to pursue their legal remedies as
mandated by law including the correctness or otherwise of the
lists etc., filed by them pursuant to the meetings held on
24.06.2021. With these observations the Writ Petition is
partially allowed and endorsements given by the Registrar (as
accepted / rejected) are set aside. The lists filed by both the
parties are directed to be kept in the record of the 2nd
respondent. They shall necessarily be subject to the final
decision of a competent Court or arbitrator as the case may be.
There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if
any, pending shall stand closed.
_________________________________
JUSTICE D.V.S.S.SOMAYAJULU
Date:21.12.2021.
NOTE: LR copy to be marked
B/o
Ssv
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.13192 of 2021
Date:21.12.2021
ssv
