Sri Achaldas S/O Tulasidas ... vs The Registrar Under The
2023 Latest Caselaw 7800 Kant

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                                                      NC: 2023:KHC-D:13412
                                                         WP No. 105496 of 2023




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                                              BEFORE
                        THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                          WRIT PETITION NO. 105496 OF 2023 (CS-RES)

                   BETWEEN:

                   SRI. ACHALDAS S/O. TULASIDAS REVANKAR,
                   AGED ABOUT 63 YEARS,
                   OCC: ENGINEER, AND
                   SECRETARY OF DAIVAGNYA
                   VIDYAVARDHAK SANGHA,
                   R/O. PRASHANTH COLONY,
                   VIDYANAGAR, HUBBALLI,
                   TQ: HUBBALLI,
                   DIST: DHARWAD-580031.

                                                                     ...PETITIONER
                   (BY SRI. G. I. GACHCHINAMATH, ADVOCATE)

                   AND:

                   1.    THE REGISTRAR
                         UNDER THE SOCIETIES REGISTRATION ACT,
MOHANKUMAR
B SHELAR                 P. B. ROAD,
                         BESIDES GANESH TEMPLE,
Digitally signed
by
MOHANKUMAR
                         DHARWAD-580001.
B SHELAR
Date: 2023.11.22
16:53:01 +0530
                   2.    DAIVAGNYA VIDYAVARDHAK SANGH,
                         VIDYANAGAR,
                         HUBBALLI-580031,
                         R/BY ITS PRESIDENT SRI. VIJAY VERNEKAR.
                                                                   ...RESPONDENTS
                   (BY SMT. KIRTILATA R. PATIL, HCGP FOR R1,
                   SRI. M. L. VANTI, ADV. FOR R2)

                          THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
                   227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
                   IMPUGNED     RESOLUTION   DATED    28-06-2023   PRODUCED   AS
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                                     NC: 2023:KHC-D:13412
                                         WP No. 105496 of 2023




ANNEXURE-C PASSED BY THE RESPONDENT NO.2 BY ISSUE OF
WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT OR ORDER
OR DIRECTIONS AND ISSUE A WRIT OF MANDAMUS DIRECTING
THE RESPONDENT NO. 1 TO CONSIDER THE REPRESENTATION
DATED 11-07-2023 PRODUCED AS ANNEXURE-E AND FURTHER
DIRECT THE RESPONDENT NO.1 TO TAKE ACTION IN TERMS OF
SECTION 25 OF THE KARNATAKA SOCIETIES REGISTRATION ACT.


        THIS PETITION, COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
                             ORDER

Heard Sri Gurudev I Gachinamath, learned counsel

appearing for the petitioner, learned Government Advocate

appearing for the 1st respondent and Sri M L Vanti, learned

counsel appearing for 2nd respondent.

2. The petition is filed seeking Writ of Mandamus. He

has also prayed to quash the resolution dated 28.06.2023

marked at Annexure - C. The resolution is said to have been

passed by the 2nd respondent - society which is registered

under the Karnataka Societies Registration Act, 1960

(Hereinafter referred to as the 'Act, 1960' for short). A writ of

mandamus is sought to the 1st respondent - Registrar to

consider the representation dated 10.7.2023 submitted by the

NC: 2023:KHC-D:13412 WP No. 105496 of 2023

petitioner wherein he has made a prayer to direct the 1st

respondent to take action under Section 25 of the Act, 1960.

3. This Court has raised a doubt regarding the

maintainability of the writ petition on the premise that the 2nd

respondent is not a State under Article 12 of the Constitution of

India and also on the premise whether the 1st respondent -

Registrar is under obligation to consider the application filed

under Section 25 of the Act, 1960 when the application is not

signed by not less than 1/3 of the members of the society. To

substantiate his contention, Mr.Gurudev would place reliance

on the following judgments of this Court:

(i) A S KUPPARAJU vs GENERAL SECRETARY, RAJU KSHATRIYA WELFARE ASSOCIATION reported in ILR 1990 KARNATAKA 3721.

(ii) SRI NETHAJI EDUCATIONAL SOCIETY AND ORS. Vs THE STATE OF KARNATAKA AND ORS. reported in ILR 1996 KARNATAKA 3058

4. In the case of A S Kupparaju supra, the Division

Bench of this Court has discussed the scope and ambit of

Section 25 of the Act, 1960. The Division Bench has noticed

three different dimensions of Section 25 and it has recognized

the discretion available with the Registrar in the first part of

Section 25 where the Registrar is empowered to take suo motu

NC: 2023:KHC-D:13412 WP No. 105496 of 2023

action under Section 25 of the Act, 1960. In remaining part of

section 25 and the obligation on the part of the Registrar to

take action when an application is made by the majority of the

members of the governing body of the society or when the

application is filed by not less than one-third of the members of

the society is noticed.

5. As far as the discretion available with the Registrar

to exercise suo moto power, the Court has taken a view that

there is no compulsion for the Registrar to take action under

Section 25 unless he is satisfied that a case is made out for

taking appropriate action. As far as remaining two parts of

Section 25 of the Act, 1960 are concerned, the Division Bench

has taken a view that the discretion is not available with the

Registrar once the appropriate application filed by the majority

of the members of the governing body are of not less than one-

third of the members of the society are submitted to the

Registrar.

6. In the case of SRI NETHAJI EDUCATIONAL

SOCIETY AND ORS. supra, the co-ordinate bench of this Court

has again analysed the scope of Section 25 of the Act, 1960

and has taken a view that the Registrar has a discretion to take

NC: 2023:KHC-D:13412 WP No. 105496 of 2023

the suo motu action even if an application is filed by anyone of

the members of the society.

7. This Court has taken a view that the power to

proceed against a society under Section 25 of the Act, 1960 on

an application under Section 25 signed by one of the members

of the society is a discretionary power of the Registrar. This

being the position, this Court has to examine whether the

petitioner who is the sole signatory to the representation dated

10.7.2023 has vested right to compel the Registrar to consider

his representation under Section 25.

8. On a reading of Section 25, it is apparent that the

members can compel the Registrar to take action under Section

25 of the Act, 1960 provided one-third of the members of the

society signed the representation and submitted to the

Registrar. That requirement is not complied.

9. The question is, "Whether there is legal obligation on

the part of the Registrar to act on the application signed by the

single member"?

10. Since the power to proceed on the application filed

by the members is subject to the fulfillment of requirement of

NC: 2023:KHC-D:13412 WP No. 105496 of 2023

Section 25, Registrar does not have the obligation to act on the

application filed by the single member. However, the Registrar

may act or may not act on the application submitted by the

member of a society. If the action is not initiated by the

Registrar on an application which does not fulfill the

requirement of Section 25 and if he refuses to take action

involving the discretionary power vested with him, such refusal

does not create a right in favour of the petitioner to compel the

Court to issue Writ of Mandamus and as there is no obligation

on the part of the respondent to act on the application filed by

the single member. This being the position, this Court is of the

view that the judgments cited by the learned counsel for the

petitioner do not assist the case of the petitioner, on the other

hand it would assist the view taken by this Court. Accordingly,

the writ petition is disposed of.

11. However, it is to be noticed that the petitioner is

not without remedy. The remedy of the petitioner lies before

the Civil Court and if such suit is initiated, the same shall be

decided without being influenced by any of the observations

made in this petition.

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Since, the petition is disposed on merits, pending

interlocutory applications do not survive for consideration.

Accordingly, petition stands disposed of

Sd/-

JUDGE

BRN