Syamal Kanti Chakrabarti, J.
1. In the instant writ petition the petitioner No. 1 Don Bosco Educational Society has contended that they are a registered society which administers and runs the affairs of a reputed Anglo-Indian school namely, Don Bosco School governed by the provisions of the Code of regulations for Anglo-Indian and other listed schools, 1993 and the petitioner No. 2 is the President of the society. The respondent No. 1, Registrar of Firms, Societies and Non-Trading Corporation is empowered under the West Bengal Societies Registration Act, 1961 to register and regulate the affairs and functions of registered societies. On the application of respondent No. 2, United Guardian Forum, the respondent No. 1 has granted registration to them and under the garb of protecting the interest of guardians of the school, they are now trying to interfere with the day to day administration and functions of the petitioner's school. The further contention of the petitioners is that the respondent No. 1 has granted registration which is not in conformity with the West Bengal Societies Registration Act, 1961. Therefore, they made several correspondences with the respondents for cancellation of the registration, but to no effect. Ultimately they have preferred the writ petition praying for cancellation of the registration with interim injunction restraining the respondent No. 2 from giving any effect or further effect to the same with consequential reliefs. The interim order was accordingly granted and extended from time to time till disposal of the writ petition.
2. In their affidavit-in-opposition the respondent Nos. 2 and 3 have opposed the move and contended that on the wake of exorbitant increase of school fees and for extension of other amenities to different government authorities, appointment of qualified and trained teachers, to discourage private tuition, rationalisation of study loads, assignment upon the students to submit projects on science without giving them idea and help regarding the project, improvement of the quality of computer education, availability of seats in school buses for each and every student, waiving of penal charges for late payment of tuition fees, preparation of the list of holidays, inclusion of guardians' representative in the managing committee etc., they made several correspondences to different authorities, but to no effect. Therefore, under compelling circumstances they formed an association to raise voice of the guardians to concede to their demands made earlier on various mattes. Since registration has been granted by the appropriate authority, they are acting to fulfil the objects of the society for improvement of education and since they are working within their ambit there is no merit in this writ application which is liable to be dismissed with costs.
3. Learned lawyer for the respondent No. 1 on the contrary has submitted that the registration was granted in terms of Section 4(2) of the West Bengal Societies Registration Act, 1961 and there is no provision for cancellation of such registration under the said Act for which they are now helpless.
4. In their affidavit-in-reply the petitioners have further claimed that their managing committee comprises of ten members of whom there are two guardian representatives to manage the affairs of the school smoothly. Therefore, the claim of respondent Nos. 2 and 3 for their inclusion in their Managing Committee is unnecessary and redundant.
5. Therefore, the main points for my consideration are, a) whether the object of the society is not in conformity with the requirements of Section 4(2) of the West Bengal Societies Registration Act, 1961 or the same is ex facie, repugnant to the requirements of the said Section and b) whether the action of the respondent No. 1 amounts to abuse of the process of law which should be redressed by cancellation of registration of respondent No. 2.
6. Admitted position in this case is that the respondent No. 1 has granted registration of respondent No. 2 and the objects of such registration have been stated in paragraph 3 of the affidavit-in-opposition filed by respondent Nos. 2 and 3 as under:
a) To work for the advancement of the education and knowledge of school going children and for their all round developments;
b) To safeguard the common interest of the school going children of different schools of the locality in all respects;
c) To promote traditional and cultural activities amongst the members of the society as well as their family members;
d) To provide for a non-political common place for meeting all the members of the society for the purpose of discussing all the common problems and the protection of its members in respect of their school going children, mutual assistance and particularly for promotion of relations and other activities, recreation and advancement of social welfare ideas and activities amongst the members and their families;
e) To hold conceptions of organising debates, discussions, seminars, lectures, symposia etc.;
f) To honour, motivate and help the outstanding students, teachers, parents and the school for upliftment and betterment of education;
g) To promote national unity and integrity, to develop a sense of universal brotherhood and fraternity amongst the members and their family;
h) To discuss, deliberate, negotiate and settle with the school authorities with regards to administration, control, teaching and non-teaching policies including the tuition fees and other administrative charges or donations or other levies of the schools etc., by whatever name called and to take part in the affairs of the schools to make the school administration more transparent and cohesive;
i) To arrange, provide and distribute the required books, stationary, school dresses and other materials to the students of its members;
j) To arrange for holding camps at different places for providing reliefs to the victims of natural calamities, epidemics etc.;
k) To hold and arrange exhibition, charity show, cultural programmes, sports and games etc. from time to time;
l) To accept any gift, grant, donation, subscriptions or fee towards raising any fund for the purpose of the society;
m) To co-operate with any other association or organisation whose objects are altoghther or in part similar to those of this society;
n) To establish good relation amongst the members of the society for their welfare;
o) To do all such other things as may be deemed incidental or conducive to the attainment of the foregoing object.
7. Learned lawyer for the petitioners has drawn my attention particularly to the objects stated in Clause (h) above and contended that in the name of discussion and deliberation, initiation and settlement with school authorities regarding their administration, control teaching and non-teaching staff and policies including the tuition fees and other administrative charges, the local people by forming an association are now trying to interfere in the smooth administration of private educational institution though they have two guardian representatives in the Managing Committee of the institute which is run without any outside and political interference so long. Particularly, this provision has been made to stultify the objects, independence and policies of the private educational institution by some unscrupulous people in the name of a registered society which is unwarranted by law. The objects and purpose of such a registered society have been clearly stipulated in Section 4 of the West Bengal Societies Registration Act, 1961 and runs as follows:
Section 4(2): The objects referred to in Sub-section 1 may relate to:
a) Promotion of literature, arts, science or religion;
b) Any charitable purpose including the care or relief of orphans or of aged, sick, helpless or indigent persons;
c) The elevation of the sufferings of animals;
d) The diffusion of knowledge;
e) The dissemination of social, political or economic education;
f) The establishment and maintenance of libraries or reading rooms for the members for the public;
g) The collection and preservation of manuscripts, paintings, sculptures, workings of art, antiquities of natural history, specimens, mechanical and scientific instruments and designs;
h) Any other object as may be notified by the State Government as being beneficial to the public or to a section of people.
8. There is no denial that under Sub-section 1 of Section 4 of the Act that any seven or more individuals associated for any of the objects mentioned in Sub-section 2 above may subscribe the name of a memorandum of association and file it along with a copy of the regulations with the Registrar for registration of the association as a society under this Act.
9. Learned lawyer for the petitioner has drawn my attention to a petition dated 30.04.2007 (Annexure P-2) addressed to the Registrar of Firms Societies and Non-Trading Corporation, West Bengal requesting cancellation of registration of respondent No. 2 and withdrawal of the certificate of registration being S/1L/15866 of 2003-04 within 14 days of issue of this letter failing which they will approach the competent Court for redressal since the respondent No. 2's action is not within the legal limits to exercise any kind of control in any way the administration of a private school in the name of a registered society. But no action has been taken by them on the contrary in another affidavit-inopposition the respondent No. 1 has candidly submitted that he has no power to cancel such registration once granted.
10. In my considered opinion there can not be any violation of rules and regulations for indefinite period without proper remedy and that no citizen or group of people shall be allowed to take undue advantage of legislative infirmity to the detriment of others.
11. Therefore, the pertinent question is to decide whether respondents will be liable to pursue their objects specified in their Memorandum of Association in terms of the registration certificate granted by respondent No. 1 or not. It has already been pointed out that the object of the newly formed society is to interfere in the day to day administration of the private school which is not admissible under any of the objects enumerated in Section 4(2) of the Act. Learned lawyer for the respondent No. 1 has contended that the objects of respondent No. 2 may come under the purview of Clause (h) of Sub-section 2 of Section 4 of the Act under heading 'Any other object as may be notified by the State Government as being beneficial to the public or to a section of the public'. Learned lawyer for the petitioner has refuted such argument and claimed that after enactment of this Act in 1961 the State Government has not notified any other object which may be termed as beneficial to the public or to a section of the public. Unless such notification is issued by the Government specifying the object the respondent cannot claim any benefit out of such clause. Moreover, the words, 'any other object' mentioned in Clause (h) of Section 4(2) should be interpreted in line with the objects enumerated in Clauses (a) to (f) of Section 4(2) and from this point of view also the objects set out in the Memorandum of respondent No. 2 suffer from incompatibility and the respondent No. 1 cannot issue any registration certificate for pursuing any such objects which are not specified in Sub-section 2 of Section 4 of the Act.
12. Learned lawyer for the petitioner has also drawn my attention to a case reported in (2003) 6 SCC 697 (Islamic Academy of Education and Anr. -Versus- State of Karnataka and Ors.) in which the Hon'ble Apex Court has set out certain guidelines for regulation and administration of private unaided minority and nonminority professional educational institutions in the matter of fixing their own fee structure, criteria for admission etc. Relying upon this principle he has stated that since the Hon'ble Apex Court has prescribed certain guidelines for management and effective administration of educational institutes those should be followed by everybody and by taking undue advantage of any statute and by forming any association any person or group of persons cannot usurp the power of specific authority or committee directed to be set up by the Hon'ble Apex Court to invade the area specifically meant for them.
13. While considering the instant prayer I also subscribe to the same view and hold that the respondent No. 1 has exceeded his jurisdiction to grant registration certificate to the respondent No. 2 for the purpose of pursuing their objects enumerated in Clause (a) to (o) of their memorandum of association. Since all these provisions are contrary to and not in conformity with the objects set out in Sub-section 2 of Section 4 of the Act such registration is illegal and inoperative and the respondent Nos. 2 and 3 cannot act on the basis of such registration. Needless to say that Clause (h) of their memorandum of association indicates their real intention to interfere in the administration of this educational institution and their other objects are to imbibe certain powers which they are not expected to exercise under the West Bengal Societies Registration Act, 1961.
14. It has also been pointed out by the respondent No. 1 in paragraph 9 of their affidavit-in-opposition that the residuary provision under Sub-section 2 of Section 4 of the Act can only protect instant registration but at the same time they have claimed that they have no power to cancel or revoke the registration once granted and under the circumstances they are practically helpless.
15. Therefore, pertinent question for my consideration is whether the Writ Court will also remain a silent spectator in such cases where all parties have been asked to do certain acts which the authority has granted contrary to the statutory provisions. Obviously, such an endeavor will be treated as an abuse of the process of law and for this reason this Writ Court should interfere in the further pursuit of such illegal objects.
16. Both parties have agreed that in the West Bengal Societies Registration Act, 1961 there is no provision for cancellation of the registration. Therefore, it is to be decided what further course of action will be left open for the parties as well as for the Court to resolve such crisis.
17. Obviously, this is a legislative lacuna which cannot and should not be filled up by the Court of law. Yet it can interpret the law with reference to all other provisions of the Act and to seek remedies if possible in such circumstances to suppress the mischief arising out of legislative lacunae. In this connection I may refer to Section 8 of the Act regarding alteration of memorandum and regulations, which runs as follows:
8. Alteration of memorandum and regulations. -
(1) A society shall not alter its memorandum except with the previous permission of the Registrar in writing, and the votes of three-fourths of its members.
(2) Before granting permission under Sub-section (1), the Registrar shall satisfy himself that the alteration does not make the society ineligible for registration under this Act.
(3) Subject to the provisions of this Act the rules and the provisions of the memorandum a society may, by the votes of three-fourths of the members, alter its regulations.
18. I should also like to enumerate hereunder the provision of Sub-section 2 of Section 36 of the Act which runs as follows:
36(2)- Any society registered in any place within West Bengal, under the Societies Registration Act, 1860, shall be deemed to have been registered under this Act, and its principal office shall be deemed to be the registered office of the society:
Provided that -(a) The Memorandum of Association and the regulations of any such society shall, if they are repugnant to any of the provisions of this Act and the rules, be brought in conformity therewith within six months from the commencement of this Act or within such further period as the Registrar may allow, and thereafter shall to the extent of such repugnancy be deemed to be void and of no effect.
19. In fact the provision laid down in Clause (a) of Sub-section 2 of Section 36 of the Act is a purely transitory provision made for regularisation of the memorandum of association in respect of those societies which were registered under the Societies Registration Act, 1860. But the legislative wisdom is reflected in such Sub-clause (a) to reconcile the repugnancy in the memorandum of association registered earlier with reference to Sub-section 2 of Section 4 of the new Act so as to bring the same in conformity with the present Act of 1961 within six months or within such further period as the Registrar may allow and thereafter such repugnancy shall be deemed to be void and of no effect.
20. I conceive that the best course for a Court to fill up legislative lacunae is to take resort to the legislative wisdom reflected in some other provision of the Act to deal with identical circumstances.
21. Therefore, in absence of any specific provision for regularisation of such repugnancy or in the matter of giving effect to bring the objects of any Memorandum of Association in conformity with the objects set out in Sub-section 2 of Section 4 of the Act it is wise to follow the same principle relating to the present Act of 1961 by resorting to harmonious construction of the provisions laid down in Section 8 and Sub-section 2(a) of Section 36 of the West Bengal Societies Registration Act, 1961 to fill up the legislative lacuna till the legislature makes specific provision for the same.
22. Therefore, I hold that in the instant case to prevent abuse of process of law instead of cancellation of the registration certificate it would be appropriate to direct the respondent No. 1 to ask the respondent Nos. 2 and 3 to take step for alteration of their memorandum and regulations in conformity with the specific objects mentioned in Sub-section 2 of Section 4 of the Act of 1961 within certain period not exceeding six months from the date of this order.
23. Therefore, I conclude that to prevent the abuse of the process of law the Writ Court has jurisdiction to entertain such petition which is maintainable in law and to prevent further continuation of such mischief above course should be adopted. The petitioners, therefore, succeeds.
24. I direct the respondent No. 1 to issue notice to the respondent No. 2 for modification or alteration of their memorandum of association so as to bring the same in conformity with the provisions laid down in Sub-section 2 of Section 4 of the West Bengal Societies Registration Act, 1961 within such period as may be specified in the notice but such process shall be completed within six months from the date of this order. Otherwise, the objects contained in the memorandum of association of respondent No. 2 shall be treated as void and inoperative to the extent of its repugnancy to the specific provisions laid down in Sub-section 2 of Section 4 of the said Act.
25. The interim restraint order is accordingly made absolute.
26. The points raised in the Writ Petition and the CAN are thus disposed of.
27. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.