Madras High Court
Inspector General Of ... vs Hajee K.K.Ibrahim Ali Higher on 15 April, 2021
W.A.(MD)No.788 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD) No.788 of 2021
and
CMP(MD).No.3562 of 2021
1. Inspector General of Registration,
O/o. Inspector General of Registration,
No.100, Santhome High Road,
Chennai.
2. The District Registrar,
Registrar of Societies,
District Registrar Office,
Sivagangai,
Sivagangai District.
... Appellants/Petitioners
Vs
1. Hajee K.K.Ibrahim Ali Higher
Secondary School Society,
Rep by its Secretary,
K.Mohammed Ibrahimsha Johny,
Pudur, Ilaiyankudi,
Sivagangai District. ... Respondent/Respondent
__________
Page 1 of 10
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
2. K.Najeemudeen,
108A, Soukath Ali Street,
Pudur, Ilayankudi,
Sivagangai District. ... Intervenor
PRAYER: Appeal under Clause 15 of the Letters Patent, against the order
dated 08.02.2021, passed in W.P.(MD) No.103 of 2021.
For Appellants : Mr.K.Sathiya Singh
Additional Government Pleader
For Respondent : Mr.G.PRabhu Rajadurai,
for first respondent
Mr.J.John for intervenor
JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
This appeal filed by the Inspector General of Registration and
another is directed against the order dated 08.02.2021, passed in
W.P(MD).No.103 of 2021, filed by the first respondent herein, whereby, the
department is aggrieved by the direction issued by the learned Writ Court,
allowing the writ petition and directing the second appellant to take on file
the Form-VII, dated 22.10.2020, submitted by the first respondent-Society.
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
2. We have heard Mr.K.Sathiya singh, learned Additional
Government Pleader appearing for the appellants, Mr.G.Prabhu Rajadurai,
learned Counsel appearing for the first respondent-writ petitioner, and also
Mr.J.John, learned Counsel appearing for the intervenor, who is also a rival
contender and it appears that the intervenor has also filed a Writ Appeal
against the impugned order before us.
3. With the consent of the either side, this writ petition is taken up for
final disposal.
4. The learned Writ Court had allowed the writ petition on the ground
that there is no legal dispute between the rival contenders, namely, the first
respondent herein and the intervenor Mr. K.Najeemudeen and that the first
respondent-writ petitioner had been elected unanimously in the General
Body stated to have been conducted on 17.10.2020, in which, 208 members
are stated to have participated. The Form-VII declaration was filed by the
first respondent which was not entertained and consequently, the writ
petition was filed.
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
5. The learned Counsel appearing for the first respondent would
contend that the reason for not taking on file the Form-VII declaration filed
by the first respondent is by referring to two earlier writ petitions, one filed
by the first respondent and one filed by the intervenor, which was for the
earlier period i.e., 2018 - 2020 and would have no relevance for the current
period.
6. However, the learned Counsel appearing for the intervenor would
submit that the intervenor has been validly elected in the General Body
conducted on 17.10.2020 and Form-VII declaration has been filed by them
on 24.12.2020 and since, there was two Form-VII declarations were filed,
one at the instance of the first respondent herein and one at the instance of
the intervenor herein, the District Registrar has called for explanation by
both the parties. It appears that the intervenor has given explanation on
15.02.2021. At this stage, we deem it appropriate to remind the second
appellant about his duty as a District Registrar while scrutinizing a Form-
VII declaration filed under the provisions of the Tamil Nadu Society
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
Registration Act. His role has been clearly explained in the decision of the
Hon'ble Division Bench in the case of R.Muralidharan v. The District
Registrar & Others, reported in 2008 (2) LW 75. The operative portion of
the judgment reads as follows:
"20. As the power of the Registrar to hold enquiry is only
to arrive at a prima facie conclusion as to the correctness of the
particulars given in Form VII, the provision of Sub-section (9)
of Section 36 should also be understood to mean that he could
issue such directions to the registered society or any of the
member of the society only with reference to the details
furnished in Form VII. It must also be borne in mind that the
enquiry under Section 36 is not only limited to the regular
affairs of the society and such affairs not only include the
constitution of a registered society but also to the working and
financial condition, and hence the power of the Registrar to
issue such direction under Sub-section (9) of Section 36 of the
Act, in regard to the constitution of the registered society must
be understood in the context of Form VII. Section 14 obligates
the registered society to maintain a register containing the
names, addresses and occupations of its members. Section
15 further mandates such registered society shall file with the
Registrar a copy of the register maintained by it under Section
14 and from time to time file with the Registrar notice of any
change among the members of the committee. In the absence of
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
failure to comply with Section 14, the Registrar could only
resort to the power under Section 37 to cancel the registration.
Hence, the power under Sub-section (9) of Section 36 cannot be
stretched to a power on the Registrar to direct the registered
society to hold fresh election. A direction to hold fresh election
would amount to indirectly setting aside the earlier election and
such power is not conferred on the Registrar under any of the
provisions of the Act. So long as the election is not declared
invalid in the manner known to law, no direction for fresh
election could be ordered. Validity of the election could very
well be decided only by the competent Civil Court as the parties
are entitled to let in their evidence to sustain their respective
claims. In the event the Registrar satisfies himself as to the
particulars furnished in Form VII as correct, he should enter
the names in the register maintained for that purpose. In the
event if he does not satisfy as to the particulars and thereby
does not accept Form VII, he has to issue a direction relegating
the parties to approach the Civil Court for appropriate orders
and thereafter shall act as per the orders of the Civil Court.
Accordingly, the issue is answered.
25. Applying the above test, it can be safely concluded
that the acceptance of forms and returns filed by the registered
societies, is nothing but ministerial in nature. This conclusion is
inevitable on account of the fact that no element of discretion is
conferred upon the Registrar under the Act, while accepting
any of the forms/returns.
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
33. In any event, the filing of Form No. VII is only a
consequential action to an election purportedly conducted. The
acceptance of such a Form by the Registrar would neither affix
a seal of approval on the validity of the election nor would the
rejection of Form No. VII by the Registrar, invalidate an
election properly conducted. Therefore, a person, who is
aggrieved by an election, should only go before a Civil Court
challenging the election. A person aggrieved by an election
cannot challenge the acceptance or rejection of Form No. VII
by the Registrar as a short cut to invalidate an election. This is
why the Full Bench of this Court, in C.M.S.Evangelical Suvi
David Memorial Higher Secondary School Committee v. The
District Registrar, Cheranmahadevi and four Ors. 2005-2- L.W.
550, held that the power under Section 34 is only incidental and
that it was only for the purpose of maintaining correct records.
Paragraph No. 18 of the Judgement of the Full Bench reads as
follows:
18. The power of the Registrar to enquire into the
affairs of the society is only to hold a summary
inquiry for his own satisfaction. The said power
cannot be construed as the power of appeal.
under Section 36, the Registrar has not been
empowered to adjudicate upon the conflicting
claims to represent the society based upon
question of fact. A plain reading of Section
36 shows that the Registrar could look only the
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
provisions of the Act and the Rules and prima
facie materials to arrive at a conclusion either to
believe or not to believe Form No. VII in order to
effect change in the register. The Power of the
Registrar to call for information and explanation
under Section 34 does not contemplate any power
to examine witnesses or to allow opportunity for
cross examination of witnesses. The power in our
view is incidental and it is only for the purpose of
maintaining correct records. As the power to
conduct inquiry is only limited in order to find out
whether constitution of members are valid, the
inquiry is limited only for the purpose of making
entries in the register. However, the exercise of
power must not be arbitrary as the orders passed
or directions issued by the Registrar is amenable
to challenge in the Writ Jurisdiction."
7. The ratio which can be culled out from the aforementioned
decision is that the District Registrar cannot decide the right of parties like
that of the civil Court and he has been termed as “Form Filer”. The District
Registrar is required to examine as to whether the procedure required to be
followed prior to conduct of the General Body has been adhered to and
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
whether the General Body has been conducted in a free and fair manner and
all the members were allowed to exercise their option and beyond that the
District Registrar cannot enter upon the disputes between the parties, which
can only done before the civil Court. Thus, while indicating the legal
position, we are inclined to issue appropriate direction to the second
appellant, namely, District Registrar, Sivagangai District, to consider the
objections filed by the first respondent as well as the intervenor, heard the
parties in person or through authorized representative and pass a speaking
order on merits and in accordance with law. The above said exercise shall
be complied with within a period of four weeks from the date of receipt of a
copy of this order. It is made clear that by then, the first respondent and the
intervenor shall place all the papers and their representations before the
second appellant. Accordingly, the writ appeal stands disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
(T.S.S.,J.) (S.A.I.,J.)
15.04.2021
Index : Yes/No
Internet : Yes/No
pkn
__________
https://www.mhc.tn.gov.in/judis/
W.A.(MD)No.788 of 2021
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
pkn
Note : In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that
the copy of the order that is presented
is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
To
1. Inspector General of Registration,
O/o. Inspector General of Registration,
No.100, Santhome High Road,
Chennai.
2. The District Registrar,
Registrar of Societies,
District Registrar Office,
Sivagangai,
Sivagangai District.
W.A.(MD) No.788 of 2021
15.04.2021
__________
https://www.mhc.tn.gov.in/judis/
