Application under Articles 226 & 227 of Constitution of India. Utkal Cine Chamber of v. State of Odisha & Others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 43100 of 2023 Application under Articles 226 & 227 of Constitution of India. Utkal Cine Chamber of Commerce, Cuttack & Others …… Petitioners --------------- - Versus - State of Odisha & Others ...…. Opp. Parties Advocate(s) appeared in this case:- ________________________________________________________ For Petitioner : Ms. Pami Rath, Sr. Adv. with M/s. P.K. Adhikari, S. Gumansingh, S. Mohanty, P. Mohanty, J. Mohanty, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate M/s. Aditya Mishra, Sharmistha Pradhan, B.P. Dhal, Advocates. [ O.Ps. 4, 5, 6, 12, 13] M/s. S.K. Tripathy, S. Sahoo, Advocates. [ O.P. Nos. 9 & 14] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23rd December, 2024 SASHIKANTA MISHRA, J. The petitioner No. 1 is a society registered under the Societies Registration Act, 1860. The other petitioners are its Executive Members. Page 1 of 39 2. Having regard to the issues involved, it is necessary to relate the facts in some detail. In 1993, several film producers and production houses came together and decided to form a society to promote, protect and safeguard the interest of the cinema industry at large and particularly, of the producers, exhibitors and distributors in the State of Odisha. They applied for registration of the society in the name of Utkal Cine Chamber of Commerce by depositing the requisite fees. On 5.10.1993, the Additional Registrar of Societies, Cuttack issued certificate of registration of the society, namely, Utkal Cine Chamber of Commerce bearing certificate number 12663 /409 /1993- 1994. With passage of time new members got registered with the society. The society, which had initially started with 15 members now has around 290 members. The society functions through its 3 sections, namely, Film Production Section, Film Distribution Section and Film Exhibition Section. The Film Production Section of the society passed a resolution on 04.01.2021 to change the domain name of the association from Utkal Cine Chamber of Commerce - Production Section to Page 2 of 39 Odisha Film Producers Association (OFPA). OFPA is a unit of UCCC. Any person who subscribes to the membership of OFPA becomes a member of the UCCC but it has separate office bearers and they are duly elected to its posts. Each section of UCCC that is, Film Producer Section (OFPA), Film Distribution Section and Film Exhibition Section have separate office bearers. The office bearers of these 3 sections become the executive members of UCCC. 3. The private opposite parties are not the executive members of the petitioner society. On 24.05.2023, some of the so called members, without any authorization of the President or Secretary of the petitioner society convened an illegal and unauthorised meeting wherein they appointed themselves as President and Secretary of the society without any authorization. These members then filed a representation on 26.05.2023 before the Additional Registrar of Societies raising a complaint against the petitioner society and claimed cancellation of the certificate of registration dated 05.10.1993. The representation was submitted complaining about the society‟s elections and disclosure of funds. Page 3 of 39 4. Subsequently, some of the said complainants filed a writ petition before this Court being W.P.(C) No. 18420 of 2023 for a direction to the Additional Registrar of Societies and Additional District Magistrate to dispose of their representation dated 26.05.2023. This Court, by order dated 08.06.2023 directed the Additional Registrar of Societies and Additional District Magistrate to dispose of the representation of the petitioners within 3 weeks from the date of receipt of the order. 5. On 01.07.2023, the Deputy Collector issued a notice asking the petitioner society and all its office bearers to appear personally and submit written submissions and supporting documents on 07.07.2023. However the notice was sent to the office bearers of Odisha Film Producers Association. Said notice was never issued to the office bearers of UCCC. Nevertheless, notice having been served on the members of OFPA, the office bearers appeared before the authorities and pointed out that the notice was sent to the office bearers of OFPA though intended for UCCC. The office bearers of OFPA also filed reply refuting all the allegations raised by the private opposite parties and clarified the factual aspects. The matter was taken up by Page 4 of 39 the Additional District Magistrate, Cuttack on 17.07.2023 on which date he directed the Deputy Collector, Gen. & Misc. to issue fresh notice to the petitioner society naming the correct office bearers and posted the case to 25.07.2023 for appearance as well as filing of written statement by the petitioner society. 6. After receiving the order of the Additional District Magistrate, some of the office bearers of the society submitted a petition seeking time of two months for submitting all the necessary documents as asked for by the authorities which were voluminous and could not be traced within a short time. On 25.07.2023, the office bearers of the petitioner society appeared before the ADM, Cuttack and again sought for time. However, no order was passed by the ADM and if at all any order was passed, it was never communicated to the petitioner society but the petitioner, acting bona fide submitted all the necessary documents along with letter dated 09.08.2023. 7. Suddenly on 15.09.2023, the Registrar of Societies re-registered Utkal Cine Chamber of Commerce issuing a fresh Page 5 of 39 certificate bearing number 615/720202300068 of 2023-24. As per the memorandum of the re-registered society, one Sanjay Kumar Naik, opposite party No.4 is the President and one N. Gangadhar Reddy, opposite party No.6 is the Secretary of the society. When the office bearers of the petitioner society came to know about such illegal re-registration of the society they immediately submitted representation before the Inspector General of Registration, Odisha by letter dated 21.09.2023 since as per the provisions of the Societies Registration Act or Rules framed there under, there is no concept of re- registration. When no response was received the petitioners sought for information under the RTI Act. In reply, the authorities submitted that the certificate earlier issued to the petitioner society had not been cancelled yet re-registration had been done on the same name on 15.09.2023. 8. In the meantime, the ADM disposed of the representation dated 21.09.2023 by order dated 09.10.2023 by stating that the Registrar of Societies has no scope to intervene/regulate the internal conflict as per the provision under Section 11-A of the Societies Registration (Odisha Page 6 of 39 Amendment) Act, 2021 and the complainants were requested to take shelter in the Court of Senior Civil Judge having jurisdiction over the place at which the office of the society is situated. 9. It is stated that as per the provisions of the Societies Registration Act and the Rules and Regulations framed thereunder, there is no power conferred on the authority to re- register a society without cancelling the earlier certificate. The earlier certificate granted in 1993 has not been cancelled till 07.11.2023. Thus the authorities have acted transgressing their authority and power while issuing the illegal re- registration certificate. Moreover, even cancellation of registration requires a reasonable opportunity of hearing to the office bearers of the society which was not provided. 10. The petitioner society had submitted reply to the complaint filed by the opposite parties on 01.07.2023. But the ADM has not considered any of the averments made in the said reply. Further the petitioner society had sought for time to submit the documents and had submitted the list of such Page 7 of 39 documents on 09.08.2023 but the same were never taken into consideration. Therefore, without passing any order on the complaint filed by the private opposite parties the ADM straight away issued the illegal certificate of registration. Had the documents sought to be filed by the society been taken into consideration the illegal certificate would not have been issued on 15.09.2023. Even otherwise the complaint filed by the private opposite parties regarding mismanagement of the society does not at all make out a case for cancellation. There is no evidence to show that the society has committed any fraud against the general public or its members. Not a single evidence has been cited to show that the office bearers have misused or made fraudulent use of the registration number or name of registration. As asked by the authorities the office bearers of the petitioner society had duly submitted all the documents including annual reports of the society showing financial transactions of the last 13 years in its reply dated 09.08.2023 but the authorities did not deem it proper to consider the same. 11. Citing basically the above facts, the present writ application has been filed with the following prayer: Page 8 of 39 “It is therefore prayed that this Hon'ble Court may graciously be pleased to admit this writ petition and issue Rule NISI calling upon the Opp. Parties to show cause and if they fail to show cause or show insufficient cause, then issue appropriate writ(s), order(s), direction(s): a. To quash the certificate of registration dated 15.09.2023 at Annexure-20; b. To declare the certificate of registration dated 05.10.1993 at Annexure-6 as valid registration certificate; c. To quash the proceeding under the complaint dated 26.05.2023; d. And to pass any other/further order(s) as this Hon’ble Court may deem fit and proper in the interest of justice and equity. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 12. Counter affidavit has been filed by the opposite party No. 1. It is stated that the so called registration is not a re- registration but a fresh registration by the Utkal Cine Chamber of Commerce with the Registrar of Societies as required to be done in view of the amendment made in the Societies Registration Act, 1860 in the year 2021. As per Rule 3 sub-Rule (2) of (sic) the Registration Rules, 2023 a society is to be registered with the Registrar of Societies for having statewide jurisdiction. It is also stated that the application filed on
Decision
08.09.2023 was disposed of as the Registrar of Societies has no Page 9 of 39 scope to intervene in the internal conflict of the society as per provisions made under Section 11A of the Societies Registration Act and therefore it was advised to take shelter in the court of Civil Judge Senior Division having jurisdiction over the matter. It is also stated that the society registered with the district level has been registered in the state level for enhancing its jurisdiction as required under Rule 3, Sub-Rule 2 of the Societies Registration Rules 2023. Since the society has never been re-registered rather it has been registered at the state level to enhance its area of operation and it has been issued against the district level society there is no question of cancelling the earlier certificate. It is also stated that the matters stated in the writ petition relate to adjudication of dispute which does not have anything to do with the certificate issued on 15.09.2023. 13. The petitioner has filed a rejoinder to the above counter. Referring to the different provisions of the Odisha Societies Registration Rules, 2023, particularly Rule 3 thereof, it is stated that none of the provisions of the Act or the rules state that a certificate issued by the Additional Registrar to a Page 10 of 39 society having operation in more than one district or throughout the State becomes inoperative or invalid so that a fresh registration has to be made under Sub-Rule 2 of Rule 3. It is also stated that certificates issued before commencement of the 2023 Rules do not become inoperative or invalid or require fresh registration. Rules 3 and 4 merely state the jurisdiction of the executive authorities of the state. Only because after commencement of the rules IGR now has the exclusive jurisdiction to register a society having its operation in more than one district or throughout the state does not warrant or create a legal compulsion for a society registered prior to the commencement of the rules to apply again or be granted suo motu fresh registration. Had the society required a renewal or its registration had expired then only the occasion of applying for any kind of registration would have arisen. It is also stated that the rules and regulations of the society appended to the registration clearly shows that the jurisdiction of the society was for the whole of the state of Odisha and therefore there was no occasion for increasing the area of operation by making any such application. In view of the Page 11 of 39 relevant provisions of the Amendment Act and the fact that the 1993 certificate still exists, a fresh registration in the name of the producer society is not permissible. The entire exercise was undertaken especially when the proceeding of cancellation of registration under Section 12-D was pending. Knowing very well about the pendency of the proceeding under Section 12-D, a notice being issued to the office bearers wide order dated 17.07.2023 have taken a stand that the society applied for registration for state- wide jurisdiction which shows that they have not verified the documents of the society which would have shown that the society already had jurisdiction over the entire state and in view of the Section 12-D proceeding it could not have entertained any application for registration. It is also stated that Sanjay Kumar Naik was one of the applicants in the Section 12-D proceeding, in the earlier writ application as also the application for certificate of registration. If the entire sequence of events are taken into consideration it will show that Sanjay Kumar Naik as the petitioner in the earlier writ application had sought for disposal of the Section 12-D proceeding that is, cancellation of registration certificate of the Page 12 of 39 petitioner society but the same Sanjay Kumar Naik representing himself as the President has now induced the authorities to issue the registration certificate which is entirely contradictory. 14. A preliminary counter affidavit has been filed jointly by private opposite party Nos.4, 5, 6, 12 and 13. It is stated in the counter that the writ application is not maintainable since the same involves disputes regarding the office bearer status of the present opposite parties. As per the 2021 amendment to the Societies Registration Act, the court of Civil Judge Senior Division alone has jurisdiction to decide such disputed questions of fact. On merits, it is stated that since the date of registration of the society, there has been no election and as per the then prevalent bye-laws, election is the only method prescribed and the same to be held annually in the month of January. The status of the other petitioners has been disputed. It is further stated that there has been no cancellation of the earlier registration obtained in 1993- 94 but in accordance with the 2021 Rules, the same was re-registered only. The petitioners claim to be the office bearers of the society and as Page 13 of 39 per their own admission there has never been any election post registration in 1993. It is also stated that the petitioners on one hand allege non completion of hearing under Section 12-D and at the same time have preferred the present writ application. In view of their admission regarding the pending proceeding there is nothing to show that all such objections were ever raised. They did not have any locus to raise objections and at best could have been raised directly under Section 12-D and not by filing the writ application. It is further stated that the registration issued in 1993-94 remained valid for 5 years and after 2021 amendment had expired and no longer remained valid. Under the circumstances the present opposite parties sought to revive the society by obtaining a fresh registration against the old registration in accordance with the amended Section 3-A of the Act. 15. A Rejoinder has been filed by the petitioners to the counter affidavit filed by the private opposite parties. It is inter alia stated that prior to Odisha Amendment of 2021 to Section 3 of the Act, registration certificate did not have a validity period. After the amendment every registration certificate Page 14 of 39 issued under the 1860 Act in the state of Odisha has been declared to have validity for 5 years from the date of its issue. However as far as the certificates regarding societies which were registered prior to the amendment, have been declared to be valid for a period of 5 years from the date of commencement of the amendment. The amendment of 2021 came into effect on 13.05.2021. The petitioner‟s registration being on 05.10.1993, it would remain valid up to 13.05.2026. Therefore, there is no question of expiry of the registration certificate dated 15.10.1993. It is further stated that the Act does not use the word „re-registration‟ but only „renewal‟. Renewal is to be done of something which has expired. Since the validity of the registration certificate dated 15.10.1993 is up to 13.05.2026 there is no occasion for making any application for renewal within the meaning of Section 3B of the Act. So, as on the date of issuance of the fresh registration certificate a valid and effective registration certificate under the name of Utkal Cine Chamber of Commerce was existing. Moreover the private opposite parties have themselves filed an application for cancellation of the existing certificate under Section 12-D of the Page 15 of 39 Act. It is also stated that in the order dated 8.6.2023 of this court in the earlier writ application there was a clear direction that till the Section 12-D proceeding is not completed no new election to the executive committee of the petitioner society can be undertaken. Presently, the Section 12-D proceeding is still pending without any decision. Therefore, the private opposite party No. 4, who was the petitioner in the earlier writ application could not have got himself elected as President through any election. 16. Heard Ms. Pami Rath, learned senior counsel with Mr. P. Mohanty, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Govt. Advocate and Mr. A. K. Mishra, learned counsel for the private opposite parties. 17. Learned Senior Counsel Ms. Rath would argue that the impugned certificate is portrayed as if it is a new certificate but it has the name of the petitioner Society as also its registration number, which is contrary to Rule 7. Admittedly, as on the date of issuance of the impugned certificate a Section 12-D proceeding was pending. But against the same certificate Page 16 of 39 and name the private opposite party No. 4 managed to get a fresh certificate showing himself as the President under Rule 7 which is meant for a new society. In any case, Rule 7 cannot be utilized for re-registration, renewal or creation of another society having the same name and registration number especially when a Section 12-D application is pending. Ms. Rath would further argue that the stand of the private opposite parties and that of the State are contradictory to each other inasmuch as according to the private opposite parties the new certificate is nothing but a re-registration whereas according to the State it is not a re-registration but a fresh registration in view of Rule 3 Sub-Rule 2. Neither of them has produced the application form on the basis of which the new certificate has been issued. Section 3C of the Act clearly states that if the validity of registration certificate expires the same should be published in the Official Gazette but no such publication had been made in the instant case. Ms. Rath further emphasized that there was no validity period of a certificate of registration prior to coming into force of the Odisha Amendment in 2021. As per the amended provisions the existing certificate remains Page 17 of 39 valid upto 5 years from the date of commencement of the amendment that is, from 13.05.2021. Thus, the certificate already existing remains automatically valid till 13.05.2026. She further argues that rules 3 and 4 relate to the distribution of powers between the Registrar and Additional Registrar and are prospective in nature. These rules do not say that the certificates issued before commencement of the 2023 rules become inoperative or invalid and require a fresh registration. It also does not say that a certificate issued by the Additional Registrar to a society having operation in more than one district or throughout the state becomes inoperative or invalid so that a fresh registration has to be made under Rule 3 Sub Rule 2 due to the amendment. The rules only provide that IGR now has exclusive jurisdiction to register a society having its operation in more than one district or throughout the state. This does not mean that the certificates issued prior to the commencement of the new rules have become invalid or its operation is hindered in the entire state. In any case, the earlier rules and regulations of the society appended to the registration certificate clearly shows that the jurisdiction of the Page 18 of 39 society was for the whole of the state of Odisha and therefore there was no occasion for increasing the area of operation. She also highlights that the private opposite party No.4 as the President had filed the section 12-D application for cancellation of the registration and he also was the petitioner in the earlier writ application. However, keeping the section 12-D application pending he induced the state authorities to get a fresh registration against the same number and name posing as President when the election itself had been stayed on the strength of the order passed by this Court. 18. Mr. S.N. Patnaik, learned State Counsel submits that the complaint dated 26.05.2023 before the Additional Registrar of Societies and Additional District Magistrate, Cuttack is a proceeding under Section 12-D of the Act, which is pending. As such, the Writ petition seeking quashing of the said proceeding is not maintainable. As regards validity of the original registration certificate issued in favour of the society, Mr. Patnaik would argue that its validity shall always be subject to the final outcome of the Section 12-D proceeding pending before the Additional Registrar and therefore, the prayer made Page 19 of 39 in the writ application to declare the certificate to be valid during pendency of the said proceeding is not maintainable. Mr Patnaik would further argue that the order passed by the ADM was entirely in compliance of the order passed by this Court in the earlier writ application filed by the private opposite parties. Mr. Patnaik further argues that a fresh certificate has been issued against the certificate earlier issued in favour of Utkal Cine Chamber of Commerce with the Registrar of Society in terms of the amended Act. The amended Act requires a society to be registered with Registrar of Society having state-wide jurisdiction. The society registered earlier by the Additional Registrar having competency to issue certificate for operation within the district only has been registered afresh at the state level to enhance its area of operation. As such, there was no requirement to cancel the earlier certificate. Even otherwise, the petitioners can challenge the certificate by moving appropriate application under Section 12-D before the Registrar who has the power to cancel the registration. Mr. Pattnaik concludes his arguments by submitting that alternative remedy Page 20 of 39 is available under Section 11-A of the Act for resolution of internal disputes among the members of the society. 19. Mr. Aditya Mishra, learned counsel appearing for some of the private opposite parties argues that Section 1 of the Societies Registration Act provides the jurisdiction of Registrar and Additional Registrar. The territorial jurisdiction of the Registrar is throughout the state but it is limited in case of Additional Registrars. Mr. Mishra further argues that if the provisions of Section 3 are read along with the other sections after the 2021 Amendment, it would reveal that the validity period of 5 years has been made applicable uniformly across all registrations made before and after the amendment. The words „such commencement‟ appearing in the proviso to Sub-Section 2 of Section 3 signifies the date of obtaining registration and not commencement of the amendment. Mr. Mishra further argues that Section 11-A provides an alternative efficacious and speedy remedy for resolution of disputes. Since the petitioners claim to be office bearers and challenge the impugned certificate their remedy lies before the competent Civil Court and not this Court. After 25.07.2023, there was no Page 21 of 39 legal or valid office bearer to manage the affairs. Some of the members decided to revive the society and a fresh application was submitted for registration at the state level. The stay order passed by this court in the earlier writ application relates to election of executive committee members and does not bar selection or nomination in order to upgrade area of operation as undertaken in the present case. If the petitioners have any grievance against issuance of the impugned certificate then the remedy is available under section 12-D, which they have not taken recourse to before filing of the writ application. On merits, Mr. Mishra would argue that there has been no election since 1993 of the society and the erstwhile elected body having lost its validity, the present petitioners are no longer competent to represent the society. On the other hand, the opposite parties having assumed office as per the new bye-laws are the true office bearers of the society. There is no provision for selection of any office bearers. There is also no resolution on 25.70.2023. So how the petitioners came to be elected as members remains under doubt. Mr. Mishra concludes his arguments by submitting that on account of operation of the Page 22 of 39 stay order the petitioners are taking undue advantage of the situation and illegally collecting money from producers. As a result, important functions such as certification, censor, registration of title etc. have come to a halt for which the Odia cinema industry has suffered at large: 20. From the foregoing narration of facts and the rival contentions advanced, it is evident that the following points arise for determination in the writ application. (i) Whether the writ application is maintainable. (ii) Whether the impugned certificate of registration is legally valid. 21. On the question of maintainability of the writ application it has been urged on behalf of the private opposite parties that there being alternative efficacious remedy available for resolution of the disputes as per Section 11A of the Societies Registration (Odisha Amendment) Act, 2021 ( in short „Act‟), the writ application involving disputed questions of fact cannot be entertained. On the other hand, it is contended on behalf of the writ petitioner that the lis involved is entirely a question of law inasmuch as the validity of the certificate of Page 23 of 39 registration issued by the Registrar purportedly as per the provisions of Section-3(2) of the Act is to be decided herein entirely on the question of his jurisdiction to do so without reference to any facts pleaded. 22. Law is well settled that availability of alternative remedy usually bars the jurisdiction of the writ Court. Long back, a Constitution Bench of the Supreme Court in the case of Union of India vs. T.R. Verma1, held that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. In the instant case, reference to the prayer made in the writ application reveals that the petitioners have sought the following relief: “It is therefore prayed that this Hon’ble Court may graciously be pleased to admit this writ petition and issue Rule NISI calling upon the Opp. Parties to show cause and if they fail to show cause or show issue appropriate writ(s), insufficient cause, then order(s), direction(s): a. To quash the certificate of registration dated 15.09.2023 at Annexure-20; 1 AIR, 1957 SC 882 Page 24 of 39 b. To declare the certificate of registration dated 05.10.1993 at Annexure-6 as valid registration certificate; c. To quash the proceeding under the complaint dated 26.05.2023; d. And to pass any other/further order(s) as this Hon’ble Court may deem fit and proper in the interest of justice and equity. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 23. It has been contended that the impugned certificate of registration (Annexure-22) is not valid on the face of the validity of the existing certificate of registration dated 05.10.1993. It has been further contended that the impugned certificate of registration has been issued in complete contravention of the provisions of the Act as also the rules framed thereunder and is therefore, wholly without jurisdiction. Therefore, this Court finds that the dispute actually pertains to interpretation of the relevant statutory provisions to see whether the concerned authority was legally correct and had the jurisdiction to issue the certificate of registration vis-a-vis the provisions of the Act and the Rules. It is equally well settled that where the order or proceeding is wholly without jurisdiction the bar of alternative remedy will not apply. The Page 25 of 39 Supreme Court held so in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai2, wherein the following observations of the Court are noteworthy. “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged..... xx xx the alternative xx. 24. It would also be useful to refer to the following observations of the Supreme Court in the case of Harbanslal [Emphasis added] Sahnia vs. Indian Oil Corporation Ltd3. “The rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the 2 (1998 )8 SCC 1 3 (2003) 2 SCC 107 Page 26 of 39 conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” [Emphasis added] 25. Thus, the legal position that emerges is, the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of the Act is challenged. 26. From what has been discussed hereinbefore and in view of the nature of challenge posed to the impugned certificate, this Court is of the considered view that notwithstanding the remedy provided under Section 11A of the Act, the writ application is maintainable. 27. Even otherwise, Section 11-A provides a remedy of raising a dispute in the Court of Senior Civil Judge and reads as follows: Page 27 of 39 “11A. In the event of any dispute arising among the members of the society in respect of any matter relating to affairs of the society including election, continuance of an office bearer in the society, any member of the society may file a petition in the Court of Senior Civil Judge having jurisdiction over the place at which the office of the society is situated and the said Court shall, after making necessary inquiry, pass such order as it may deem fit.". 28. It is evident that any dispute arising among the members of the society in respect of any matter relating to affairs of the society including election etc. can be grounds for filing a petition before the said Court. But then as discussed earlier, the dispute in question is not so much relating to affairs of the society but to the power of the Registrar to grant certificate of registration invoking the provisions of the Amendment Act, 2021. Thus, the contention advanced on behalf of the private opposite parties is, untenable and the writ application is held to be maintainable. 29. Coming to the main dispute, i.e., legality of the impugned certificate, it would be apposite to refer to a few relevant provisions of the Act at the outset. Section 1 of the Societies Registration, Act 1860 (Odisha Amendment) reads as follows Page 28 of 39 “1. Application of Registrar of Societies: (1) The State Government may, by notification, appoint a person to be called the Registrar of Societies and he shall exercise such powers and perform such duties and functions as are conferred by or under the provisions of this act, and shall subject to such general or special order as under the provisions of this Act, and shall subject to such general or special order as the State Government may from time to time make, superintend the administration and carry out the provisions of this Act throughout the State of Odisha." Section-3 reads as follows: "3.(1) Upon such memorandum and certified copy being filed and on payment of such fee as may be notified by the Government from time to time, the Registrar of Societies shall certify under his hand that the society is registered under this Act. (2) A certificate of Registration issued under sub-section (1) shall remain valid for a period of five years from the date of issue: Provided that a society registered under this Act, before the commencement of the Societies Registration (Odisha Amendment) Act, 2021, shall remain in force for the date of such a period of commencement:". five years from Provided further that nothing in this sub-section shall apply to a society in which Government is a member or contributor upon its registration under sub- section (1)." Section 3B and 3C of the Act are quoted hereinbelow. 3B. (1) A Society registered under section 3 whether before or after the commencement of the Societies Registration (Odisha Amendment) Act, 2021, shall, on application made to the Registrar of Societies, within one month before expiry of the period referred to in sub- section (2) of section 3 and on payment of such fees as may be prescribed in the rules, be entitled for renewal of Its registration for a further period of five years. Page 29 of 39 (2) The application for renewal made after the expiry of the period referred to in sub-section (1) but not more than six months after such expiry, shall be allowed by the Registrar of Societies on payment of such late fees, as may be prescribed in the rules. (3) A society which falls to get its certificate of registration renewed in accordance with this section within six months from the expiration of the period for which the certificate was operative shall become an unregistered society. (4) The Registrar of Societies may refuse to renew the certificate of registration if he is satisfied that any of the grounds mentioned in section 12-D exists in respect thereof after giving opportunity of being heard before such refusal. 3C. The Registrar of Societies shall publish in the official Gazette the names of the societies whose validity of certificate of registration has expired.". 30. Coming to the facts of the case, it is not disputed that Utkal Cine Chamber of Commerce was granted certificate of registration bearing No.12663/409/93-94 issued by the Additional Registrar of Societies, Cuttack on 05.10.1993. The Societies Registration (Odisha Amendment) Act, 2021 (Odisha Act 10 of 2021) came into force on 13.05.2021, i.e. the date of its notification in the Odisha Gazette. The proviso to Sub- Section(2) of Section 3 quoted above lays down that a Society registered under the Act “before commencement of the Amendment Act of 2021” shall remain in force for a period of five years from the “date of such commencement”. Page 30 of 39 31. It has been argued by Mr. A. Mishra, learned counsel appearing for the private opposite parties that the expression “such commencement” signifies the date of obtaining registration and not commencement of the amendment and further that from the amending act itself, section 3 stood substituted and not inserted in order to have prospective effect. 32. Ms. Pami Rath, learned Senior Counsel on the other hand, has argued that the language employed in the proviso is plain and unambiguous, not admitting of any interpretation other than what strikes to the mind on a bare reading thereof. 33. What would be effect of the expression “such commencement” employed in the proviso to Sub-Section (2)? Undoubtedly, the word „commencement‟ occurring in the first part of the proviso directly relates to the date of commencement of the Amendment Act. What then would be the meaning of the same word used in the later part of the proviso? 34. It is well settled that when the legislature uses the same word in different parts of the same section or statute, there is a presumption that the word is used in the same sense Page 31 of 39 throughout. Such view was taken by the Supreme Court in the case of Bhogilal Chunilal Pandya v. State of Bombay, 1958 SCC OnLine SC 294 wherein it was held that words are generally used in the same sense throughout in a statute unless there is something repugnant in the context. In the case of Central Bank of India v. Ravindra5, it was held that “where the draftsman uses the same word or phrase in similar context, he must be presumed to intend it in each place to bear the same meaning”. In the case of Shamrao Vishnu Parulekar v. District Shamrao Parulekar6, it was held that “the rule of construction contended for is well settled, but that is only one element in deciding what the true import of the enactment is to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statue.” 35. Thus, the only interpretation of the word „commencement‟ occurring twice in the proviso to sub-Section (7) of Section 3 would be that it qualifies the Odisha
Decision
order of 41. As has already been stated hereinbefore, being noticed, the petitioners appeared and requested for time to submit the documents and in fact submitted the documents on 09.08.2023. While the matter was thus pending, the impugned certificate was granted. No final order appears to have been passed in the Section 12-D proceeding. It has been argued on behalf of the State that issuance of the fresh certificate has no bearing on the Section 12-D proceeding. This Court finds that in an earlier writ application, being W.P.(C) No. 18420 of 2023 filed by the private opposite party No.4, a coordinate Bench of Page 37 of 39 this Court had directed the ADM to conclude the proceeding with the further rider that no election of the office bearers shall be held before disposal of the Section 12D complaint. 42. Having regard to the facts involved, it cannot be said that the 12D proceeding had no nexus with the grant of fresh certificate of registration. In fact, both are intrinsically related. A party cannot be allowed to pursue two remedies simultaneously. Here, the private opposite party No.4 and some other, jointly filed the complaint under Section 12D for cancellation of the original certificate. While the same was pending, they could not have submitted application for grant of fresh certificate, which according to them was a re-registration. There is no provision in either the Act or the Rules providing for re-registration. In fact, it is an unknown concept. Be that as it may, the Additional Registrar could not have entertained the application for grant of fresh registration/re-registration, whatever be its nomenclature, when the proceeding under Section 12D was pending. In the fitness of things, an order ought to have been passed in the 12D proceeding concluding it at the first instance. Page 38 of 39 43. Thus, from the above narration of facts it is seen that the concerned State authorities have dealt with the issue in a somewhat haphazard manner and in any case, contrary to the provisions of law. The entire action therefore, becomes unconscionable in law warranting interference by this Court. 44. To sum up, this Court holds as follows: (i) The fresh registration/reregistration of the society in question by the Additional Registrar vide Annexure-22 being contrary to the statutory provision is invalid in the eye of law. 45. In the result, the writ petition is allowed. The impugned certificate of registration under Annexure-22 is hereby quashed. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 23rd December, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Dec-2024 12:21:44 Page 39 of 39