Mohan Sharma v. The District Registrar(Administration) & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 17.08.2009CORAMTHE HONOURABLE Mr. JUSTICE K.VENKATARAMAN W.P.No.539 of 2008and M.P.Nos.1 to 3 of 2008 and 1 and 2 of 2009Mohan Sharma ... Petitioner Vs. 1.The District Registrar(Administration), In the cadre of Assistant Inspector General of Registration, Central Chennai, Office of the District Registrar, Old No.72, New No.100, Chamiers Road, Nandanam, Chennai-18.2.The South Indian Film Chamberof Commerce, rep. by its Hon. Secretary, Film Chamber Building, No.604, Anna Salai, Chennai-6.3.Mr.Anbalaya K.Prabhakaran... Respondents.Writ Petition has been filed under Article 226 of TheConstitution of India for the issuance of writ of certiorari tocall for the records of the first respondent culminating in hiscommunication bearing Letter No.17262/E2/2007 dated 10.12.2007 andquash the same.For Petitioner : Mr.Sriram Panchu, S.C., for Mr.Arun Anbumani,For Respondents : Mrs.Lita Srinivasan, G.A. for R.1 Mr.P.B.Balaji, for R.2 Mr.T.Thiageswaran, for M/s.Waron & Sairam, for R.3 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner has come up with the present writ petitionchallenging the order of the first respondent culminated in hiscommunication dated 10.12.2007.2. The short facts which are relevant for the purpose ofdisposal of the present writ petition, are set out here under:-2.1. The petitioner is a Special Invitee to theExecutive Committee of the South Indian Film Chamber of Commerce(herein after referred to as Chamber). The Chamber was establishedin the year 1939 and registered under the Societies RegistrationAct. There are about 3000 members in the Chamber. They areclassified under various groups viz., studios, producers, etc. Themembers of the second respondent are from the Southern States ofIndia and represents the above distinct groups of their respectiveStates.2.2. On 15.11.2007, the third respondent, an ExecutiveCommittee member along with 53 other members of the secondrespondent, forwarded a letter to the second respondent requestingto call for a special meeting as per bye-laws 15 to amend the bye-laws by totally abolishing the existing proxy system of voting inthe elections and bring in personal voting system. They have alsorequested that their request be placed in the Executive CommitteeMeeting to be held on 16.11.2007 and call for a Special Meeting forthe said objects.2.3. On 16.11.2007, the Executive Committee Meetingdecided to have the General Body Meeting on 06.01.2008. The secondrespondent's Executive Committee sent a circular dated 05.12.2007to convene an Executive Committee Meeting to be held on 12.12.2007duly including an agenda relating to annual election of officebearers and Executive Committee members for the year 2007-08. 2.4. The Executive Committee met on 12.12.2007. It hasbeen brought to the notice of the Committee members that the thirdrespondent had written a letter dated 10.12.2007 addressed to theRegistrar of Societies, Chennai, the first respondent hereinpraying for action against the second respondent and directions tothe second respondent to conduct Special Meeting on 06.01.2008 withagenda of removing proxy and not to conduct the election beforeconducting the Special Meeting. It was also informed that thefirst respondent vide his impugned communication dated 10.12.2007directed the second respondent to take steps to amend the bye-lawsand thereafter, conduct the election. https://hcservices.ecourts.gov.in/hcservices/

2.5. On 12.12.2007, there was heated discussion on thisissue and it was finally decided to hold an Executive Committeemeeting on 06.01.2008 to discuss all the points to be discussed inthe General Body meeting. Thereafter, the first respondentaddressed to all the Executive Committee members intimating that on06.01.2008, an Executive Committee Meeting of the second respondentwould be held. It is reliably learnt that the members from variousSouthern States except Tamil Nadu have not sought to amend theprovisions relating to authorised representatives.The impugned communication of the first respondent dated 10.12.2007is, thus challenged on the ground that it crossly interferes withthe decision making of the second respondent. The petitionerbeing a Special Invitee of the second respondent is aggrieved overthe said communication and hence, he has approached this Court byfiling the present writ petition since there is no other effectivealternative remedy.3. The third respondent filed counter affidavits alongwith applications for vacating the interim stay and interiminjunction in M.P.Nos.2 and 3 of 2009. In the said counteraffidavits, the following facts have been set out:-3.1. The writ petition is not maintainable on the groundthat the petitioner has no locus standi to challenge the orderpassed by the first respondent which is communicated to the secondrespondent, since it does not infringe the private right of thepetitioner. The second respondent association accepted the saiddirection issued by the first respondent and acted upon byconstituting a sub committee in its own with a view to amend thebye-laws of the association. The petitioner is one of the membersof the said committee for the purpose of amending the bye-laws ofthe association. While so, in the absence of any infringement ofhis private right, the petitioner cannot be heard to say that he isaggrieved over the order of the first respondent and hence, thewrit petition filed by him is not maintainable. 3.2. The second respondent association had beencontinuously conducting elections for the past several yearswithout strictly adhering the requirements as contemplated underRule 8(i) of the Bye-laws of the Association regarding authorisedrepresentatives (Proxy). With a view to rectify the said mistake,which had been practised by the Chamber for a long period, it wasdecided by a majority of its members to bring appropriateamendments in the proxy system or eliminate the same. Hence, 53members have sent a requisition to the second respondent on15.11.2007 with a request to call for an extra-ordinary GeneralBody Meeting to amend the bye-laws by abolishing the existing proxysystem. The said request had been placed before the Executive https://hcservices.ecourts.gov.in/hcservices/ Committee Meeting held on 16.11.2007. In the said meeting,including the petitioner, 39 members of all region participated.Later, on 05.12.2007, in the Executive Committee Meeting, it wasdecided to hold the election without having any agenda in respectof the discussion regarding the proxy system. It was served on thethird respondent only on 10.12.2007. Hence, 53 members of thesecond respondent Chamber had sent a representation to the firstrespondent to intervene and conduct the extra-ordinary General BodyMeeting for regulating the proxy system. Thereupon, the impugnedorder dated 10.12.2007 had been passed.3.3. The order of the first respondent has beenspecifically issued to the second respondent and if at all the sameis ultra virus or seems to be an interference of the administrationof the second respondent association, it is the second respondentassociation which had to challenge the said impugned order. But,however, the second respondent had not initiated any proceedingschallenging the communication of the first respondent.3.4. Subsequent to the filing of the writ petition, thesecond respondent had taken up the issue of the requisition givenby the third respondent along with 53 member in the ExecutiveCommittee Meeting held on 06.01.2008 and it was elaboratelydiscussed by the Executive Committee and the Executive Committeehas decided to form a Sub committee to formulate the proposedamendments and suggestion in respect of proxy system ascontemplated under bye-law No.8(i). The petitioner is one of theSub Committee member. The Sub Committee had filed itsrecommendation and suggestion. The petitioner having beenparticipated and accepted the direction issued by the firstrespondent, cannot now challenge the same. 3.5. After obtaining interim stay and interim injunctionon 05.01.2008, the petitioner had participated in the ExecutiveCommittee Meeting of the second respondent association held on06.01.2008. The second respondent association had discussed aboutthe representations given by the third respondent and 53 membersregarding authorised representatives. The petitioner did not evenmurmur anything about the interim orders obtained from this Court.On the other hand, after elaborate discussions, he himselfvoluntarily became the member of the Sub Committee constituted bythe second respondent for the purpose of amending the bye-laws,which would show that he had accepted the decision of the secondrespondent association pursuant to the representations given by thethird respondent and its Executive members. The Sub Committeesubmitted a report on 21.01.2008, which recommended suggestion andthe remarks in respect of the amendments of the various bye-laws.Thus, the counter affidavits sought for the dismissal of the writpetition. https://hcservices.ecourts.gov.in/hcservices/

4. I have heard Mr.Sriram Panchu, learned Senior Counselappearing for the petitioner, Mrs.Lita Srinivasan, learnedGovernment Advocate, appearing for the first respondent,Mr.P.B.Balaji, learned counsel appearing for the second respondentand Mr.T.Thiageswaran, learned counsel appearing for the thirdrespondent.5. Learned Senior Counsel appearing for the petitionerwould mainly contend that --(i) the impugned order is liable to be set aside on thesole ground that no notice has been issued to the petitioner andthe like-minded people;(ii) representation was given on 10.12.2007 by the thirdrespondent and orders have been passed on the same day and noticeto all members should have been given by the first respondentbefore passing such order;(iii) section 36 of the Tamil Nadu SocietiesRegistration Act, 1975 (herein after referred to as Act)contemplates that the Registrar, on his own motion or on theapplication of a majority of the members of the committee of aregistered society or on the application of not less than one-thirdof the members of the said society, shall hold an enquiry intoconstitution working and financial condition of the registeredsociety. In the case on hand, since a request has been made onlyby the third respondent, the Registrar, the first respondent hereinought not to have exercised the power under Section 36 of the saidAct;(iv) the first respondent ought to have directed thesecond respondent to hold the election and thereafter, the secondrespondent should have been directed to make amendments in the bye-laws;(v) the proposal for amending the bye-laws had come fromthe Committee, which is holding on today without proceeding withthe election;6. On the other hand, learned counsel appearing for thethird respondent would submit that --(i) it is not the third respondent alone, who hadapproached the first respondent, but the third respondent alongwith 53 members had approached the first respondent;(ii) the impugned communication dated 10.12.2007 was notmade under Section 36 of the said Act; https://hcservices.ecourts.gov.in/hcservices/ (iii) the petitioner has no right to maintain the writpetition. He cannot maintain the writ petition on behalf of otherssince he has not filed the writ petition on his behalf and also inthe representative capacity for other members;(iv) he has not been authorised by any other members tocanvass the correctness or otherwise of the order of the firstrespondent dated 10.12.2007;(v) the petitioner having participated in the Executivecommittee Meeting and having failed to raise any objection, cannotnow lay the claim that the order of the first respondent has to go;(vi) the petitioner volunteered himself to be a memberof the Sub Committee in the Executive Committee Meeting which hastaken place after he has moved this Court and obtained interimorders. Hence, he cannot be now allowed to question thecorrectness or otherwise of the order of the first respondent.7.1. The first and foremost contention that has beenraised on behalf of the contesting respondent which deserves to beconsidered is, whether the petitioner is having locus standi tomaintain the writ petition. The petitioner being an individual,had approached this Court against the proceedings of the firstrespondent dated 10.12.2007. It is not his case, as could be seenfrom the averment made in the affidavit that he is fighting for thecause of others. He has stated in paragraph 3 of the affidavitthat he is a Special Invitee of the Executive Committee and thePast President of the Chamber of Commerce, the second respondentherein. He has not whispered that he has filed the writ petitionin the representative capacity fighting the cause of others.7.2. Secondly, the petitioner cannot represent thesecond respondent so as to fight for the cause of the secondrespondent Chamber. In ground 'e' of the affidavit in support ofthe writ petition, it is stated that "the impugned communicationpassed by the first respondent undermines the foundation andsubstratum of the society which is meant for representing membersall over South India. It amounts to taking away the fundamentalright of association to carry on its business. It also violatesthe constitutional right to equality by discriminating between themembers without any rationale, criteria or nexus to the purpose ifthe society". As stated already, he can neither represent norfight for the cause of the Chamber.7.3. Thirdly, the petitioner after filing the presentwrit petition and after obtaining the interim orders, seems to haveparticipated in the Executive Committee Meeting held on 06.01.2008and in the said Executive Committee Meeting, it was decided to form https://hcservices.ecourts.gov.in/hcservices/ a Sub Committee to formulate the proposed amendments andsuggestions in respect of proxy system as contemplated under bye-law 8(1). The Sub Committee constituted by the second respondentconsists of 14 members including the petitioner herein. The SubCommittee also filed recommendations and suggestions in and by theminutes dated 21.01.2008, to the Executive Committee, recommendingamendment in respect of the bye-laws. The petitioner havingparticipated as a member of the Sub Committee, now cannot be heardto say that the action of the first respondent is unacceptable.7.4. Fourthly, by the impugned order, the firstrespondent has given certain directions to the second respondentand if at all the same is not acceptable, the second respondent isthe competent person to question the proceedings of the firstrespondent. The petitioner, who is not holding any post in thesecond respondent Chamber so as to canvass the correctness orotherwise of the order of the first respondent, has taken a role ofthe second respondent and now, pleading before this Courtquestioning the order of the first respondent.7.5. Who could be an aggrieved person came in forconsideration before the Hon'ble Apex Court in J.M.Desai v. RoshanKumar reported in A.I.R. 1976 SUPREME COURT 578. Their Lordshipshave held that it depends upon the nature and extent of prejudiceand injury suffered by him. Paragraphs 12 and 33 of the saiddecision are usefully extracted here under:-"12. According to most English decisions, inorder to have the locus standi to invoke certiorarijurisdiction, the petitioner should be an "aggrievedperson" and in a case of defect of jurisdiction, such apetitioner will be entitled to a writ of certiorari as amatter of course, but if he does not fulfil thatcharacter, and is a "stranger", the Court will, in itsdiscretion, deny him this extraordinary remedy, save invery special circumstances. This takes us to the furtherquestion: Who is an "aggrieved person"? And what are thequalifications requisite for such a status? Theexpression "aggrieved person" denotes an elastic, and, toan extent, an elusive concept. It cannot be confinedwithin the bounds of a rigid, exact and comprehensivedefinitions. At best, its features can be described in abroad tentative manner. Its scope and meaning depends ondiverse, variable factors such as the content and intentof the statute of which contravention is alleged, thespecific circumstances of the case, the nature and extentof the petitioner's interest, and the nature and extentof the prejudice or injury suffered by him. EnglishCourts have sometimes put a restricted and sometimes awide construction on the expression "aggrieved person". https://hcservices.ecourts.gov.in/hcservices/ However, some general tests have been devised toascertain whether an applicant is eligible for thiscategory so as to have the necessary locus sandi or'standing' to invoke certiorari jurisdiction.33. This Court has laid down in a number ofdecisions that in order to have the locus standi toinvoke the extraordinary jurisdiction under Article 226,an applicant should ordinarily be one who has a personalor individual right in the subject-matter of theapplication, though in the case of some of the writs likehabeas corpus or quo warranto this rule is relaxed ormodified. In other words, as a general rule,infringement of some legal right or prejudice to somelegal interest inhering in the petitioner is necessary togive him a locus standi in the matter."7.6. In the case on hand, the petitioner cannot be saidto be an aggrieved person since he is not deprived of something towhich he is legally entitled. The restricted meaning of a personaggrieved could only mean denial or deprivation of his or her legalrights. Thus, a person aggrieved must be a person who has suffereda legal grievance against whom a decision has been pronounced whichhas wrongfully deprived him of something or wrongfully refused himsomething or wrongfully affected his title to something.7.7. Thus, for the reasons adduced above, the one andonly conclusion that could be arrived at is --(i) the petitioner has no locus standi to question theorder of the first respondent;(ii) the petitioner cannot be an aggrieved person overthe order of the first respondent;(iii) the petitioner cannot represent the secondrespondent;(iv) the petitioner subsequent to the filing of thepresent writ petition and subsequent to the interim orders obtainedin this writ petition, participated in the Executive CommitteeMeeting and volunteered himself to be a member of the Sub Committeefor the purpose of making amendment in the bye-laws. Now, hecannot be heard to say that he is aggrieved over the order of thefirst respondent dated 10.12.2007 since he was a party to theproceedings initiated by the second respondent which has acted onthe orders of the first respondent dated 10.12.2007;7.8. The above conclusions arrived at by me for thereasons stated earlier, will amply prove that the petitioner isneither having locus standi to question the action of the first https://hcservices.ecourts.gov.in/hcservices/ respondent nor he be permitted to canvass the correctness orotherwise of the order of the first respondent;8. Even though I have come to the conclusion that thepetitioner is not aggrieved over the order of the first respondentand cannot maintain the writ petition for the reasons adducedearlier, still in view of the submission made on the other countsalso, I am obliged to consider the same. 9.1. Learned Senior Counsel appearing for the petitionersubmitted that Section 36 of the Act contemplates that theRegistrar, on his own motion or on the application of a majority ofthe members of the committee of a registered society or on theapplication of not less than one third of the members of thesociety, shall hold an enquiry into the constitution, working andfinancial condition of the registered society. However, in thecase on hand, since the representation has been given by the thirdrespondent alone, the Registrar ought not to have exercised hispower under Section 36 of the Act and ought not to have passed theimpugned order.9.2. It is contended on behalf of the respondents thatthe impugned order was not passed by the first respondent byvirtue of power under Section 36 of the Act and hence, it does notrequire an application by the majority of the members of thecommittee of the registered society or requires one third membersof the society. Further, it is contended that that arepresentation dated 10.12.2007 was given to the Registrar not onlyby the third respondent but also by other fifty three members ofthe society. Therefore, the Registrar considering the saidrepresentation passed the impugned order and the same cannot befaulted. But, however, it is contended by the learned SeniorCounsel appearing for the petitioner that except Section 36 of thesaid Act, no other provision is available under the Act for theRegistrar to exercise his power. 10. I have considered the submissions made in thisregard.11. As rightly pointed out by the learned Senior Counselappearing for the petitioner, except Section 36 as found in ChapterIV of the Act, nowhere the power is given to the Registrar toexercise his right to hold an enquiry into constitution, workingand financial condition of the society. It would be useful toextract Section 36 of the Act which is extracted here under:-" 36. Power of Registrar to inquire into theaffairs of registered society:- (i) The Registrar, may,of his own motion or on the application of a majority ofthe members of the committee of a registered society or https://hcservices.ecourts.gov.in/hcservices/ on the application of not less than one-third of themembers of that registered society, or, if so moved bythe District Collector hold or direct some personauthorised by the Registrar by order in writing in thisbehalf to hold, an inquiry, into the constitution,working and financial condition of that registeredsociety".Hence, the contention raised on the side of the third respondentthat the impugned order does not relate to Section 36 of the Actmay not be correct. Learned counsel appearing for the thirdrespondent is unable to point out any other provision under theAct, which empowers the Registrar to go into the constitution,working and financial condition of the registered society. Hence,I am of the considered opinion that the Registrar while passing theimpugned order, had exercised his power under Section 36 of theAct.12. Then, the next question arises for consideration iswhether the Registrar has exercised his power rightly under Section36 of the Act as contemplated thereon. A reading of Section 36 (1)of the Act makes it very clear that the Registrar-- (i) on his own motion; or(ii) on the application of a majority of the members of the committee of a registered society; or(iii) on application of not less than one third of the members of the registered society; or(iv) if it is so moved by the District Collector,can hold the enquiry into the constitution, working and financialcondition of the registered society. In the case on hand, exceptthe application made by the third respondent on 10.12.2007 whichfinds a place in the reference column in the impugned order, noother members of the committee or members of the society seems tohave requested the Registrar of the society to consider thegrievance expressed thereon. When the provision is very clear thatthe Registrar shall act of his own motion or on the majority of themembers of the committee of the registered society or not less thanone-third of the members registered society, the Registrar oughtnot to have acted on mere representation made by the thirdrespondent alone. This point is, thus held in favour of thepetitioner.13. In view of the conclusions arrived at by me that thepetitioner cannot maintain the present writ petition, thecontention of the learned Senior Counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner that the impugned order is liable to be set aside sinceno notice has been issued to the petitioner and the like-mindedpeople does not require any consideration. 14. Thus, considering the over all circumstances of thecase, the following conclusions are arrived at:- (i) The impugned order of the first respondent dated10.12.2007 could be construed only as an order made under Section36 of the Tamil Nadu Societies Registration Act, 1975 since thereis no other provision in the Act to hold or direct some otherperson authorised by him to hold an enquiry into the constitution,working and financial condition of the society;(ii) The Registrar ought not to have acted on therepresentation made by the third respondent since Section 36 of theAct enumerates that the Registrar may, of his own motion, or on theapplication of the majority of the members of the committee or onthe application not less than one-third of the members of thesociety, is empowered to hold or direct some other authorisedperson to hold an enquiry into the constitution, working andfinancial condition of the society;(iii) However, the petitioner cannot be construed as a personaffected by such order and he has no locus standi to maintain thewrit petition for the reasons stated in the preceding paragraphs7.1 to 7.8.15. In fine, the writ petition stands dismissed.However, there is no order as to costs. Consequently, connectedmiscellaneous petitions are closed.sbi Sd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The District Registrar(Administration), In the cadre of Assistant Inspector General of Registration, Central Chennai, Office of the District Registrar, Old No.72, New No.100, Chamiers Road, Nandanam, Chennai-18.+ 1 cc to Mr. G. Swaminathan, Advocate SR No.38978+ 1 cc to M/s. P.B. Ramanujam, Advocate SR No.38778+ 1 cc to M/s. Waron & Sairams, Advocate SR No.38715MRD(CO)SR/31.8.2009Order in W.P.No.539 of 2008