R.P. Sethi, C.J.
1. Claiming to be the members of the respondent - Society, the appellants, on their own behalf and on behalf of the other members of the Society filed Writ Petitions with prayer for quashing Rule 7(A) of the Rules and Regulations of the H.K.E. Society, Gulbarga (hereinafter called the 'Rules'). Further prayer was made for the issuance of writ of mandamus to the first respondent to direct, in turn, to the second respondent to prepare a voters' list including the names of all the persons who were on rolls as members during 1978-79 and whose names were shown in the Register of Members prepared after 1978-79 and whose names had been added to the said list from time to time irrespective of the fact whether they had paid subscription or they were in arrears. Referring to the provisions of Sections 2(b), 6, 9 and 19 of the Karnataka Societies Registration Act, 1960 (hereinafter called the 'Act) and Rule 3 made thereunder, it was claimed that despite being in arrears, a person had to be continued as a member and could not be disqualified or expelled. The object of the Act is stated to be to provide for the Registration of Literary, Scientific, charitable and other societies in the State of Karnataka. The Act does not specifically provide for expulsion of a member. It was claimed that a person who had been admitted once as a member had the right to continue as such till he resigned or incurred such disqualification which disentitled him to be member. The bye-laws, Rules and Regulations framed by the Society were required to be in conformity with Section 6 of the Act, proviso to which provided that no Rule or Regulation of the society shall exclude any member from being entitled to vote. Rule 7(A) was stated to have the effect of expelling a member, with the result that his right to vote was taken away. It was submitted that the public policy behind the Act was to see that ail members participated in the affairs of the Society which was brought into existence for the good of the society. No person or management could take away the precious right to vote which was claimed to be the hallmark of a democratic system. The Rule 7(A) was alleged to violate the principles of democracy and purported to give the management the right of expulsion of any member for any irregularity which was otherwise curable. The offending bye-law was alleged to be unconstitutional as it gave unguided and unbridled power to the second respondent to create a situation where it could refuse or avoid to take the subscription from the members to eliminate some persons from membership. The expulsion covered by Rule 7(A) was alleged to result in civil consequences and thus violative of Articles 14 and 21 of the Constitution.
2. The learned Judge formulated the following questions of law for his consideration :
a) Whether a Writ Petition under Article 226 is maintainable against the second respondent - society?
b) Whether Rule 7(A) of the second respondent-society is inconsistent with Section 2(b) of the Act and therefore void? and
c) Whether the amendment to Rule 7 in March 1981 violated the provisions of Section 9 of the Act and therefore, invalid;
3. While deciding point (a), it was held that the Writ Petition was not maintainable against the second respondent-society in the matter relating to the membership. Further, as the petitioner contended that the prayer was so moulded that the relief was claimed against the first respondent and not the second respondent, the learned Judge decided to consider the other points arising for consideration instead of rejecting the petition as not maintainable. While deciding points (b) and (c), the petitions were dismissed after appreciating the rival contentions of the parties. Being not satisfied with the order of the learned Single Judge, the present appeal has been filed on the grounds that the learned Judge was not justified in holding that the Writ Petition was not maintainable against the respondent-society, which according to the appellants, was State/authority, within the meaning of Article 12 of the Constitution of India. It has been further submitted that the learned Judge was also not justified in dismissing the Writ Petitions while determining the legal points formulated as points (b) and (c). The action of the respondent was also alleged to be in violation of the principles of natural justice, violating the guarantee enshrined in Article 14 of the Constitution. It was argued that the Rule 7(A) being inconsistent with Section 2(b) of the Act was void and that no member could be disqualified under the said bye-law. The disqualification of membership could be voluntary and not otherwise. Referring to the objectives of the society, it was submitted that action of the respondent in depriving the appellants and other members like them was contrary to the mandate of law as laid down by this Court in W.P.Nos. 3040-42/1991 and W.A.Nos. 725--27/1991. Reliance has also been placed upon various other judgments of this Court and of the Apex Court.
4. It has been pointedly argued that any bye-law of the societies registered under the Act which prescribes, circumscribes or abridges the rights of its members, including deeming his or her cessation for membership, is violative of Section 2(b) read with proviso to Section 6(2) of the Act. Automatic resignation assumed on account of default in payment of subscription within the time framed is alleged to be unreasonable, oppressive and anti-democratic, offending the fundamental rights of the members. It is contended that once a. member is enrolled, he is entitled to continue as such member till his demise, unless the member voluntarily resigns. The right of a member to vote is claimed to be in alienable and a member in arrears can, at the most, be deprived of participation in the proceedings of the society. The defect of being in arrears is curable under Section 19 of the Act.
5. In reply, it is submitted that the learned Single Judge had rightly held the defaulting members to have resigned, as contemplated vide Section 2(b) of the Act read with Rule 7(A). The impugned rule is claimed to be legal, valid and intravires of the provisions of the Act. It is submitted that the appellants become defaulters in 1979-80 and, therefore, ceased to be the members of the society. The Writ Petitions filed by them after about 15 years, being belated and suffering from laches, were liable to be dismissed. The bye-laws of the Society are termed to be in the nature of a contract, which cannot be enforced in exercise of the jurisdiction under Article 226 of the Constitution. Some of the members, who ceased to be the members by default, had filed O.S.No. 520/1987 seeking similar relief, but the suit was dismissed on 7.4.1992. During the pendency of RSA No. 395/1992, the appellants therein filed I.A.I. with prayer to withdraw the suit with permission to file a fresh suit, if, in case the High Court declined to grant the relief under Article 226 of the Constitution. The H.K.E. Society is stated to have been registered under Act No. 1/1950 of Hyderabad Societies Registration Act, which was amended in 1931 under the Act. The definition of 'member' is stated to be the same in both the Acts. Similarly, Rule 7 of the unamended Rules and Rule 7(A) of the amended rules are substantially the same, except the date of payment of membership subscriptions. It is contended that as the appellants have not challenged the unamended Rule 7, it would revive, even if Rule. 7(A) is struck down, in view of the provisions of Sections 6 and 24 of the General Clauses Act read with Section 31 of the Act.
6. We have heard the learned Counsel for the parties at length and perused the records.
7. In view of the frame of the Writ Petition. We are not called upon to decide as to whether the respondent-Society is a 'state' within the meaning of Article 12 of the Constitution of India. The challenge to the vires of Rule 7(A) is covered under the prayer made for issuance of a writ of certiorari, quashing the certificate, Annexure 'A', issued by the first respondent. It is submitted that once the certificate of registration issued by the first respondent is withdrawn, the existence of the second respondent as a society would terminate and it would not be entitled to the protections and rights conferred under the Act.
8. In order to appreciate the rival contentions, it is necessary to have reference to some of the provisions of the Act. Section 2(b) defines a member of the Society as :
''member' means a person who, having been admitted to membership of a society in accordance with the rules and regulations thereof, shall have paid his subscription and shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations; but in all proceedings under this Act, no person shall be entitled to vote or to be counted as a member whose subscription at the time shall have been in arrear for a period exceeding three months;'
Section 3 refers to the societies to which the Act is applicable. Section 4 provides that no society, other than a society of which the State Government is a member, which does not consist of atleast seven persons above the age of 18 years shall be registered under this Act. Section 6 deals with the requirements with respect to memorandum and provides :
'(1) The memorandum of association of every society shall state..
(a) the name of the society;
b) the objects of the society;
c) the names, addresses and occupations of the members of the governing body to whom, by the rules of the society, the management of its affairs is entrusted;
d) the place at which the registered office of the society is to be situated.
2) There shall be registered with the memorandum of association, the rules and regulations of the society, which shall contain provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and proceedings of meetings of the governing body :
Provided that, save as otherwise provided in this Act, no rule or regulation of a society shall exclude any member from being entitled to vote.
(3) The memorandum and rules and regulations of the society shall be printed or typewritten, be divided into paragraphs, numbered consecutively and be signed by each subscriber to the memorandum of association (who shall add his address, description, age and occupation, if any) in the presence, of at least one witness who shall attest the signature and shall likewise add his address, description and occupation.'
Section 9 provides for alterations of memorandum of association and lays down the specific procedure for it. The name, rules and regulations of a society can be changed in accordance with the procedure prescribed by Section 10 of the Act. Under Section 19, arrears of subscription from the members can be recovered by way of suit. The Registrar of Societies has powers to enquire into the matter specified under Section 25 and cancel the registration or direct the dissolution of the societies upon existence of conditions specified in Section 27 of the Act.
9. While dealing with Section 2(b), the learned Judge held :
'... that a 'member' means a person who, having been admitted to membership of a society in accordance with the Rules and Regulations thereof, shall have paid his subscription and shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations.Thus the four requirements for a person to be a member, are that he (a) shall have been admitted to membership as per the Rules and Regulations; (b) shall have paid his subscription; (c) shall have signed the list of members; and (d) shall not have resigned in accordance with such rules and regulations. A careful reading makes it evident that the first three requirements relate to the stage of admission to membership. Hence the words 'paid his subscription' will have to be interpreted as referring to the initial subscription and not the current subscription. The fact that petitioners had paid initial subscription and singed the list of members and were admitted to membership of the society is not in dispute. Thus conditions (a) to (c) are fulfilled.'
While dealing with the fourth condition specified by him, the learned Judge held that if a member failed to pay the subscription before the time specified, it was to be presumed that he had willingly and voluntarily given up his membership by relinquishing the same. Such members were held to have 'resigned in accordance with the rules and regulations'. While confirming the findings of the learned Single Judge returned with respect to the requirements (a) to (c), we are called upon to decide as to whether non-payment of subscription by the members would amount to relinquishment of membership by resignation, as contemplated by Section 2(b) of the Act.
10. 'Resignation' has not been defined under the Act and its dictionary meanings are :
a) Relinquish (a claim etc.,)
b) To give up an office, position of employment etc.,
c) Surrender or become reconciled, accept passively.
(Webster's Dictionary)
a) Relinquish, surrender, give up, handover.
b) Reconcile oneself, one's mind etc.
c) Give up office, retire.
(Concise Oxford Dictionary)
a) To give up an office, position, etc
b) To submit; yield
c) To give up (an office, position etc.)
d) To relinquish (a claim, right, agreement) etc.
e) To submit (oneself, one's mind etc.,) without resistance
(Random House Dictionary)
According to the Law Lexicon, 'Resignation' means a resignation of an office, which to be complete, implies to consent of the incumbent. It implies that the person resigning has been elected into the office he resigns. One cannot resign that which he is not entitled to, and which he has no right to occupy. Only the acceptance of a resignation makes an office vacant and not the mere resignation.
11. The relinquishment, surrender, giving up, submitting, yielding and thereby resigning from an office implies the conscious act of the party tendering resignation. It envisages an over act and cannot be presumed on the basis of the covert acts or omissions. Resignation is a conscious decision to relinquish or give up a position by showing the election of the party to demit the office or the position. Resignation, to be complete, requires the positive consent of the person resigning. Relinquishment of office by resignation cannot be complete unless the person intending to resign communicates his offer and the same is accepted by the other side. In J.K. COTTON SPINNING AND WEAVING MILLS CO. LTD. v. STATE OF UP, : (1991)ILLJ39SC it was held that resignation is an act by which an employee voluntarily gives up his job and the resignation would not be complete unless it was accepted by the proper authority. After referring to various dictionary meanings, it was held, 'there can be no doubt that a resignation must be voluntarily tendered for, if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quit service'. It was further held, 'when an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service'. In UNION OF INDIA v. GOPAL CHANDRA MISRA, : (1978)ILLJ492SC it was held :
''Resignation' in the Dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim: Resionatio est juris propel spontanea refutatio (See Earl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To 'relinquish an office' means to 'cease to hold' the office, or to 'loose hold of' the office (of Shorter Oxford Dictionary); and to 'loose hold of office', implies to 'detach', 'unfasten', 'undo or untie the binding knot or link' which holds one to the office and the obligations and privileges that go with it.
In the general juristic sense, also, the meaning of 'resigning office' is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edition, Volume 15A, page 80) although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting as under from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event.'
12. Resignation, therefore, means a complete and effective act of resigning office with the intention of severing the links of the resignor with the office and position for the purposes of terminating the tenure. The act of resignation is not complete, unless specifically accepted and such acceptance conveyed to the resignor.
13. In view of what we have noted hereinabove, it cannot be said that mere non-payment of the subscription would amount to resignation within the meaning of Section 2(b) of the Act. Nonpayment of subscription would also not amount to relinquishment of membership, unless a person is afforded a specific opportunity of making payment by calling upon him to pay the arrears or face the consequences. The society may be justified and the respondents may prescribe any such rule which provides for affording anopportunity to the defaulting member to make the payment of thearrears of subscription and upon failure, without valid reasons, declare the defaulter to cease to be the member for the purposes of the Act and the Rules.
6
2(b)
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14. Learned Counsel appearing for the respondent has vehemently argued that as the appellants have only prayed for striking down of amended Rule 7(A) and not prayed for striking down of unamended Rule 7, the writ appeals, even if allowed, would be infructuous. It is an acknowledged position of law that the High Court does not issue infructuous writs. In order to protect the interest of the parties, the relief can be appropriately moulded. It has been stated before us on behalf of the respondents that the old Rule 7 and amended Rule 7(A) are parimateria the same and identical. If, for the defects noted in Rule 7(A) it is declared to be invalid on account of being contrary to the provisions of the Act, Rule 7 cannot escape the liability of being struck down on the same grounds. Technicality of insisting upon filing another petition would not come in our way to grant the appropriate relief to the appellants. Otherwise also, the provisions of old Rule 7 and new Rule 7(A) appear to be very harsh, in as much as they declare a person to cease to be a member merely on his default to make the subscription within a specified time, without even providing him an opportunity to show cause for not making the payment within the aforesaid period. Confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed by the first respondent to be incorporated by the second respondent in the bye-laws. The respondent-Society could have been directed to make a provision for recovery of the arrears of the subscription in a phased manner and if the arrears were not paid despite opportunity, provision could have been made for cessation of membership or deprivation of the right to vote.
15. We are, therefore, of the opinion that the learned Single Judge was not justified in holding that Rule 7 of the old Rules and Rule 7(A) of the amended Rules of the society were not inconsistent with Section 2(b) of the Act. As according to our findings, the old Rule 7 and the amendment Rule 7(A) are in violation of the mandatory provisions of the Act, the same could not be permitted to remain in existence. Being without the authority of law, the rule is liable to be struck down.
16. Under the circumstances, the appeals are ALLOWED, by setting aside the judgment of the learned Single Judge and holding that the present Rule 7(A) of the Rules of the respondent-society and Old Rule 7 being contrary to the provisions of the Act, are liable to be struck down. The first respondent is directed to afford the second respondent an opportunity to suitably amend the rule in the light of the observations made hereinabove and if the rule regarding subscription is not amended within the time specified, the Certificate of Registration, Annexure 'A' be quashed. Till the time the first respondent takes action upon our directions, any elections held or actions taken by the second respondent in pursuance of the rules framed by it shall be held void and inoperative.
17. Parties to bear their own costs.