Sri Shambhu Dey vs The State Of West Bengal And Others
2023 Latest Caselaw 3862 Cal

AD-91
Ct No.09
16.06.2023
TN
                            WPA No. 1861 of 2023

                               Sri Shambhu Dey
                                     Vs.
                       The State of West Bengal and others


             Mr. Sanjib Bandopadhyay,
             Mr. Manoj Kr. Mondal
                                                  .... for the petitioner

             Mr. Lalit Mohan Mahato,
             Mr. Jiaul Haque
                                                         .... for the State

             Mr. Ujjwal Datta,
             Mr. Indranuj Dutta
                                      .... for the respondent nos. 6 to 8

Two moot issues have fallen for consideration in

the present writ petition.

The petitioner has challenged the veracity of the

registration of a Society under the West Bengal

Societies Registration Act, 1961 (hereinafter referred

to as "the 1961 Act").

It is argued that in view of the said society

having not furnished all documents as per the extant

Regulations, the said registration ought to be

cancelled.

It is further argued by the petitioner that the

petitioner is the allottee of the said property, in

respect of which the Society has obtained registration,

by showing the same to be the address of its

registered office. However, the same was done by

perpetrating fraud patently, on which score the

petitioner made a representation before the Registrar

of Societies. Initially, the Registrar had called for the

relevant records from the Society.

Subsequently by virtue of a direction of a

coordinate Bench of this court, the Registrar decided

on the representation of the petitioner. However, the

Registrar refused to recall the registration or cancel

the same.

The first question which has arisen is whether

the function of the Registrar in registering a Society

and/or cancelling such registration is an

administrative or a quasi-judicial action. A subsidiary

question thereto is, if administrative, whether the

Registrar could assume the jurisdiction to cancel the

registration subsequently upon discovering violation

of the statute at the time of registration, by deeming

such power to be vested in the Registrar within the

contemplation of Section 21 of the General Clauses

Act.

Secondly, on merits, whether the petitioner was

entitled to an order by the Registrar for cancellation of

the registration awarded to the Society-in-question,

namely, the Ramgarh Shivmandir Unnayan Samity.

In respect of the first issue, learned counsel for

the petitioner cites a full Bench judgment of the

Gauhati High Court reported at AIR 2019 Gau 3

[Atowar Rahman s/o Daroga Ali vs. State of Assam

and others] for the proposition that the order of

cancellation of certificate of registration is an order

within the meaning of "orders" under Section 21 of the

General Clauses Act as well as Assam General

Clauses Act. The Registrar, it was held, can cancel

the registration of society after giving opportunity of

hearing to the parties.

On the contrary, learned counsel appearing for

the respondent nos. 6 to 8 cites a judgment of the

Supreme Court reported at (2002) 5 SCC 685 [Indian

National Congress (I) vs. Institute of Social Welfare and

others] to argue before the court that the Supreme

Court clearly distinguished between a quasi-judicial

and an administrative function. It was held by the

Supreme Court that in case of quasi-judicial functions,

powers cannot be arrogated by an authority to itself.

While so distinguishing, the Supreme Court had been

pleased to observe that a quasi-judicial act is one

which has to be according to the Rules (statutory)

whereas an administrative function is dictated by

policy and expediency. The Supreme Court, while so

discussing, also entered into the subtle nuisances of

the interplay between the two and discussed the

situations where there may be ingredients of both.

Learned counsel for the respondent nos. 6 to 8

also cites a judgment of a learned Single Judge of the

Delhi High Court reported at 2012 SCC OnLine Del

2535 [Brij Mohan Gupta vs. The Registrar of Societies].

By placing reliance on the said judgment, it is argued

that the Delhi High Court placed reliance on the

Supreme Court judgment which has been cited by the

respondents and thereafter went on to proceed on the

premise that an act of registration/cancellation by the

Registrar under the Societies Registration Act is not

an administrative but a quasi-judicial function.

It is, thus, argued by the respondents that the

quasi-judicial power exercised by the Registrar cannot

be enhanced with a component which has not been

vested statutorily on the Registrar.

Learned counsel for the State, as per previous

direction of court, files a report which indicates that

there is no provision for registration of a Society in the

1961 Act and Rules thereunder requiring the

submission of documents, that is, NOC in non-judicial

stamp paper related to the premises or land where the

registered office of the Society is proposed to be

situated.

However, it has further been disclosed that in

order to avoid any dispute regarding the registered

address of the society, the office of the Registrar of

Firms, Societies and Non-Trading Corporations, West

Bengal has made the submission of NOC in non-

judicial stamp paper by the owner of the

land/premises where the registered office of the

Society is proposed to be situated, necessary as an

usual procedure, although there is no specific

provision in the Act and the Rules made thereunder.

Learned counsel appearing for the petitioner,

taking a cue from the said report, submits that under

Section 5 of the 1961 Act, sub-section (1)(b) mandates

that the address of the registered office of the

association has to be contained in the Memorandum.

Hence, since such mandate flows from the statute, it

is argued that the production of relevant documents

in that regard is necessary. If a fraud is practised on

the authorities by the person seeking to get a

registration, it is open to the Registrar to reopen the

issue of registration, since fraud vitiates all.

As regards the second question, which is

interconnected with the above discussions, it is also

submitted that in the present case, the registration

having not been obtained properly by production of

documents on non-judicial stamp paper pertaining to

the consent of the owner of the land, which is the

petitioner, the said registration itself is vitiated and

the Registrar could very well cancel the same.

Learned counsel for the petitioner has also

placed reliance on Sections 22 and 25 of the West

Bengal Societies Registration Act, 1961 and argues

that the power of the Registrar to call for information

or explanation vested under Section 22 would be a

toothless formality in the event the Registrar did not

have power to cancel the registration. Even in the

present case, Section 22(1) was duly invoked by the

Registrar, which indicates that Section 22 is

applicable to the present case. Moreover, even the

court can dissolve a registered society, although the

prerequisites for the same are not applicable in the

present case.

Heard learned counsel for the parties.

The first question which has arisen is whether

the power of the Registrar to register a Society under

the 1961 Act and/or cancel such registration is an

administrative function or a quasi-judicial one.

Although the Supreme Court judgment cited

from the Bar deals with the cases where distinctions

between quasi-judicial and administrative functions

have been laid down and the same has been followed

by a learned Single Judge of the Delhi High Court in

the context of the said principle being applicable to

the Societies Registration Act, thereby not conferring

power to the Registrar to cancel or reopen the

registration itself, the judgment cited by the petitioner

is that of a full Bench of the Gauhati High Court,

which also has strong persuasive value. In the

Gauhati High Court judgment, it was clearly observed

that the power of Registrar as regards registration of

Society is administrative in nature and not quasi-

judicial.

Hence, it was observed that order of cancellation

of certificate of registration is an order within the

meaning of orders under Section 21 of the General

Clauses Act.

A careful consideration of the provisions of the

statute does not reveal that there is any power vested

on the authority granting registration, that is, the

Registrar, to recall the order of registration or to

review the same. Although there is no specific power

of cancellation vested in the Registrar under normal

circumstances, undoubtedly, the Registrar has power

to call for information or explanation under Section 22

by a written order, in cases where the Registrar deems

fit. On receipt by the society of an order under sub-

section (1) of Section 22, it would be the duty of the

officer concerned to furnish such information or

explanation. Sub-section (3) thereof provides that for

failure to comply, there is a token sanction provided

under the statute by way of a fine.

Carrying on further, Section 23 of the Act vests

power in the State Government to investigate the

affairs of a Society where, on information received, the

Government is of the opinion that there are

circumstances suggesting that the business of a

Society is being conducted with intent to defraud its

creditors, members or any other persons etc.

Section 25, which is for dissolution by court,

provides that the court may, on the application of the

Registrar or on the application of not less than 1/10th

of the members, make an order for the dissolution of a

Society in certain cases. The said cases also include

any contravention by the society of the provisions of

the Act.

Hence, a clear reading of the different provisions

of the Act reveals that the Registrar does not have

power to cancel the registration, once granted.

Rather, Section 23 vests the State Government with

such power to investigate and take corrective

measures in the event there is any subsequent

mismanagement in the affairs of the Society after such

registration.

Even the court has been vested with a power,

but only on an application of not less than 1/10th of

the members of the Society or on an application of the

Registrar. One can easily link the provisions of

Section 22 of the power of the Registrar to call for

information or explanation with a following application

by the Registrar before the court for dissolution under

Section 25. In such cases, however, it is not the

Registrar but, on an application of the Registrar or

1/10th of the members, that the court has the

authority to take up such issue.

In the present case, even without going into the

disputed issue as to whether the function of

registration is a quasi-judicial or administrative

function, it is seen that the cancellation sought by the

petitioner before the Registrar is something which is

beyond the scope of the authority of the Registrar.

Even assuming the best case of the petitioner that the

Registrar had the power to reopen such registration,

the issue raised by the petitioner is the contravention

of a mere technical provision introduced as a matter of

convenience by the office of the Registrar of Firms.

However, as admitted by the Registrar of Firms

in his note, there is no provision for registration of a

Society under the Act or the Rules made thereunder

requiring the submissions of documents by way of

NOC on non-judicial stamp paper from the registered

owner, which is the alleged violation canvassed by the

petitioner in the present case.

That apart, on a more basic premise, it is

evident that only a civil court has the jurisdiction to

decide on the allegations made by the petitioner to the

effect that the Society-in-question has sought to

usurp the land of the petitioner, to which the Society

does not otherwise have title. Such question can only

be raised before and addressed by a competent civil

court having jurisdiction to take up such issues and

not decided by the Registrar of the Cooperative Society

or by the writ court, without taking detailed evidence.

As such, even if the contravention of such

procedure introduced by the Registrar's office was

committed by the Society, it cannot be said that the

same authorizes the Registrar under the Societies

Registration Act to cancel the registration outright

and/or recall the order of registration.

Hence, there is no scope of interference in the

present writ petition.

However, it is made clear that it will be open to

the petitioner to approach the competent civil court

with the disputes regarding the title to the property,

on which the society-in-question has shown its

registered office to be situated, before a competent

civil court. If such issues are raised, the said court

shall decide the same in accordance with law without

being prejudiced or influenced in any manner by any

of the observations made herein.

WPA No. 1861 of 2023 is disposed of accordingly

in the light of the above observations.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)