Telangana High Court

The President And Another vs Yelakanti Balesh on 10 February, 2023

Bench: P.Madhavi Devi

  IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
            FOR THE STATE OF TELANGANA
                                  ****
          CIVIL REVISION PETITION NO.2094 OF 2022

  The President, Sri Vasavi Kanyaka Parameswari
  Arya Vyshya Nithyanna Sathra Sangham,
  Yadagirigutta Village and another                   .. Petitioners

                                  Vs.

  Yelakanti Balesh                                   .. Respondent


       DATE OF THE JUDGMENT PRONOUNCED: 10.02.2023

  SUBMITTED FOR APPROVAL:

        THE HON'BLE SMT. JUSTICE P. MADHAVI DEVI


1. Whether Reporters of Local newspapers                     Yes/No
   may be allowed to see the judgment?


2. Whether the copies of judgment may be                     Yes/No
   marked to Law Reporters/Journals


3. Whether Her Lordship wish to                              Yes/No
   see the fair copy of the judgment?



                                        ___________________________
                                        JUSTICE P. MADHAVI DEVI
                                                         C.R.P.No.2094 of 2022
                                    2

          * THE HON'BLE SMT. JUSTICE P. MADHAVI DEVI

            +CIVIL REVISION PETITION NO.2094 OF 2022


% DATED 10th FEBRUARY, 2023


# The President, Sri Vasavi Kanyaka Parameswari
  Arya Vyshya Nithyanna Sathra Sangham,
  Yadagirigutta Village and another                        .. Petitioners

                                    Vs.

$ Yelakanti Balesh                                         .. Respondent


<Gist:




>Head Note:




! Counsel for the petitioners           : Sri R.A. Chary

^Counsel for the respondent             : Sri Papaiah Peddakula




? CASES REFERRED:

1.       2015 (4) ALT 153
2.       2003 (2) ALD 196
3.       (2008) 12 SCC 112 : (2009) 1 SCC (Cri) 328
                                                         C.R.P.No.2094 of 2022
                                    3

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


          CIVIL REVISION PETITION NO.2094 OF 2022


                                ORDER

This Civil Revision Petition has been filed by the respondents in

S.O.P.No.179 of 2018 against the order dt.11.08.2022 passed therein by

the Principal District Judge at Bhongir.

2. For the sake of convenience, the parties are referred to as they are

arrayed in the SOP.

3. Brief facts leading to the filing of the CRP are that the petitioner

claiming to be a member of respondent No.2 society has filed

S.O.P.No.179 of 2018 before the Principal District Judge's Court,

Bhongir under Section 6 of the Societies Registration Act, 1860 seeking

to pass a decree granting mandatory injunction/direction to the

respondents to convene general body meeting, to conduct general

elections and to furnish statements of account and balance sheet of

respondent No.2 society to all its members.

4. The respondent No.2 filed its counter/written statement objecting

to the S.O.P. on two grounds:

C.R.P.No.2094 of 2022

(i) The petition under Section 6 of the Societies Registration

Act, 1860 is not maintainable as the said Act has already

been repealed by the Amendment Act 35 of 2001 which

was effective from 09.08.2001 and that the same was

named as the A.P. Societies Registration Act, 2001.

(ii) The petitioner in the SOP is not a member of the 2nd

respondent society on the date of filing of the petition as he

has already been removed from the membership of the

society vide unanimous resolution passed by the society on

14.08.2017 vide resolution No.4/1.

It was thus stated that the petitioner has no locus standi to seek any

relief against the society.

5. The Principal District Court at Bhongir however allowed the

S.O.P. As regards the first objection about the maintainability of the

S.O.P. in view of the repeal of the Societies Registration Act, 1860, the

Court below observed that mere quoting of a wrong provision of law by

the counsel in the petition is not a ground for its rejection and for this

purpose, the Court below placed reliance on the decision of this Court in

the case of Payala Gopi Vs. Tiebeam Technologies India Private C.R.P.No.2094 of 2022

Limited and others1. As regards the second objection that the petitioner

is not a member of the 2nd respondent society, the Civil Court has

observed that though the petitioner has not filed any receipt to show that

he is a member or executive member of respondent No.2 society,

respondent No.1, in his cross-examination has admitted the membership

certificate dt.15.07.2008 of the petitioner. Further as regards the removal

of the petitioner from the primary membership for his illegal acts by

passing a unanimous resolution and therefore the petitioner has no locus

standi to file the SOP, the Court below has held that the respondents

have not filed a copy of the resolution and also have not filed any

evidence that respondent No.2 society has followed the due procedure

for removal of the petitioner from the membership of the society. Thus,

both the objections were rejected and the S.O.P. was allowed.

Challenging the same, the present CRP is filed by the respondent society

and its President.

6. Learned counsel for the revision petitioners, Sri R.A.Chary, while

reiterating the grounds raised in the CRP and also the contentions raised

in the counter filed by the respondents in the S.O.P., submitted that the

reliance of the Court below on the decision of this Court in the case of

2015 (4) ALT 153 C.R.P.No.2094 of 2022

Payala Gopi Vs. Tiebeam Technologies India Private Limited and

others (1 supra) is misplaced. He submitted that in the said case, the

facts were totally different and the Hon'ble High Court was considering

the case where an interim application was made by misquoting the

provision of law, but the said principles cannot be applied to an

application which is filed under a repealed Act. He further placed

reliance upon the decision of this Court in the case of Kanigolla

Lakshmana Rao Vs. Gudimetla Ratna Manikyamba and another2

for the proposition that the petition would have to be filed only under

Section 23 of the A.P. Societies Registration Act, 2001 and not under

the old and repealed Act. He has also taken the ground that the petitioner

in the S.O.P. was not a member of the society at the time of filing the

petition and therefore did not have the locus standi to file the SOP

before the Court below.

7. Learned counsel for the respondent herein/petitioner in the S.O.P.,

Sri Papaiah Peddakula, however, supported the order of the Court below

and submitted that mere mentioning of a wrong provision of law would

not be a justifiable ground for rejection of the S.O.P. He submitted that

the District Court has jurisdiction to try the petitions both under Section

2003 (2) ALD 196 C.R.P.No.2094 of 2022

6 of the Societies Registration Act, 1860 and also under Section 23 of

the A.P. Societies Registration Act, 2001 and therefore, the S.O.P. was

rightly entertained and allowed by the Court below. As regards the issue

of membership of the petitioner in SOP, he placed reliance upon the

finding of the Court below that the respondent society failed to file any

document to show that the petitioner was validly removed from the

membership of the society.

8. Having regard to the rival contentions and the material on record,

this Court finds that the basic issue before this Court is whether the

Court below was justified in entertaining the petition filed under Section

6 of the Societies Registration Act, 1860 after repeal of the said Act and

after introduction of the A.P. Societies Registration Act, 2001.

9. Admittedly, respondent No.2 society was registered under the

Andhra Pradesh (Telangana Area) Public Societies Registration Act

1350F and the said Act was repealed by virtue of the Andhra Pradesh

Societies Registration Act, 2001 (Act 35 of 2001). The said Act has

subsequently been renamed as the Telangana Societies Registration Act,

2001 vide G.O.Ms.No.20, Revenue (Registration II) Department

dt.18.08.2014. Prior to the enactment of Act 35 of 2001, the law

relating to the societies and their registration had been governed by the C.R.P.No.2094 of 2022

Societies Registration Act, 1860 (Central Act 21 of 1860) in the Andhra

and by Andhra Pradesh (Telangana Area) Public Societies Registration

Act, 1350 Fasli (Act of 1350 Fasli) in the Telangana area of the State of

Andhra Pradesh. It is stated that in order to have a comprehensive law

and to secure uniformity in the laws applicable to the Societies

throughout the State, Act 35 of 2001 was enacted to provide for

Registration of Societies formed for the purposes mentioned therein.

10. The petitioner filed S.O.P.No.179 of 2018 under Section 6 of the

Societies Registration Act of 1860, whereas he ought to have filed the

SOP under Section 7 of the Andhra Pradesh (Telangana Area) Public

Societies Registration Act 1350F in respect of the SOP against the 2nd

respondent society. Section 6 of the Societies Registration Act of 1860

and Section 7 of the Andhra Pradesh (Telangana Area) Public Societies

Registration Act 1350F are pari materia similarly worded, which are

reproduced as under:

"Section 6 of Societies Registration Act, 1860:

6. Suits by and against Societies:- Every Society registered under this Act may sue or be sued in the name of the President, Chairman, or Principal Secretary, or Trustees, as shall be determined by the rules and regulations of the Society, and, in default of such determination in the name of such person as shall be appointed by the governing body for the occasion:

C.R.P.No.2094 of 2022

Provided that it shall be competent for any person having a claim or demand against the Society, to sue the President or Chairman, or Principal Secretary or the Trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."

"Section 7 of the Andhra Pradesh (Telangana Area) Public Societies Registration Act 1350F:

7. Suits by and against Society:- Any such registered Society may sue or be sued in the name of the Chairman or Secretary or Trustees, as shall be determined by the rules of the Society, and if there are no rules in this behalf, in the name of such person as shall be nominated by the managing committee for this purpose:

Provided that when a suit is instituted against such Society, the plaintiff shall apply to the managing committee of the Society to nominate any person to be made the defendant, and if the managing committee fails to nominate any person within a month or if, in the circumstances, the matter cannot be deferred so long, the plaintiff may sue the Society's Chairman or Secretary of Trustees."

11. Therefore, it was under these circumstances that the Court below

has held that mere mentioning of a wrong provision would not vitiate

the proceedings. However, the question is whether the petitioner can file

under the repealed Acts, after the new Act has come into effect. Section

32 of the Act 35 of 2001 deals with Repeals and Savings of the repealed

Acts. Section 6 of the General Clauses Act, 1897 also provides for

protecting the repealed provisions or Regulations or Acts and saves a C.R.P.No.2094 of 2022

right accrued or a liability incurred under the repealed Acts, but does not

create a right. When Section 6 of the General Clauses Act applies, only

an existing right is saved thereby, and the existing right of a party has to

be determined on the basis of the statute which was applicable at the

relevant point of time and not under the new one. If a new Act confers a

right, it does so with prospective effect when it comes into force, unless

expressly stated otherwise, as held by the Hon'ble Supreme Court of

India in the case of State of Punjab Vs. Bhajan Kaur3. Therefore, by

repeal of the earlier Act of 1350F, the acts done by the society under the

old Act and also the liabilities incurred thereunder are saved.

12. However, in this case, the petitioner is seeking recourse against

the 2nd respondent society in view of the acts done in the year 2014 and

thereafter. By the said date, new Act 35 of 2001 has come into force.

Therefore, the petitioner can only seek redressal under Act 35 of 2001

and not under the old Act of 1860. Under the new Act 35 of 2001, it is

under Section 23 that the petitioner would have to seek redressal and the

Forums made available thereunder for such redressal are: (1) the Forum

under the provisions of the Arbitration and Conciliation Act, 1996

(Central Act 26 of 1996), before which proceedings may be initiated; or

(2008) 12 SCC 112 : (2009) 1 SCC (Cri) 328 C.R.P.No.2094 of 2022

(2) the District Court under whose jurisdiction the society is functioning,

before which an application may be filed. Section 23 of the Telangana

Societies Registration Act, 2001 (Act 35 of 2001) is extracted as under:

"23. Dispute regarding management--In the event of any dispute arising among the committee or the members of the society, in respect of any matter relating to the affairs of the society, any member of the society may proceed with the dispute under the provisions of the Arbitration and Conciliation Act, 1996, (Central Act 26 of 1996) or may file an application in the District Court concerned and the said Court shall after necessary inquiry pass such order as it may deem fit."

Thus, under both the earlier Act as well as the amended new Act, Civil

Court has been given the jurisdiction, but not only the provision of law

under which the SOP can be filed has been amended, but also the facts

and circumstances under which challenge can be made and the parties

who can challenge have been amended.

13. Thus, the petition filed by the petitioner has to be filed under the

subsisting Act 35 of 2001 and cannot be filed under the repealed Act of

1860. The judgment relied upon by the Court below would be applicable

if the petitioner had filed the SOP under the amended new Act but by

quoting the earlier provision of law and when the language used in both

the provisions is materially same. However, the SOP has been filed C.R.P.No.2094 of 2022

under an Act which has since been repealed and therefore, the Court