Shimoga Zilla Madivala Sangha and anr. Vs. the District Registrar, for Societies and Associations and anr. - Court Judgment

Excerpt:
karnataka societies registration act, 1960 (karnataka act no. 17/1960)--section 7--district registrar exercises the power under section 7 of the act and grants registration--the registrar thereafter recalled the order of registration granted to the petitioners--this recall order questioned and it was held that once the power is exercised under section 7, there is no power to recall the said order and section 7 gets exhausted. ;even if the requirements under section 5 and 6 of the act are fullfilled, but if the registrar finds that the name of the society sought to be registered resembles the name of an already existing society, he may refuse to register under section 7 of the act. this power under section 7 has to be exercised at the time of considering the application for.....orderrangavittalachar, j.1. the ' shimoga zilla madivala sangha' by its president and the secretary have filed this writ petition challenging the order of the district registrar of societies, shimoga vide annexure f dated 23-2-2000 recalling his earlier order passed by him on 24.10.1998 in exercise of his powers u/s 7 of karnataka societies registration act, 1960 (hereinafter referred to as the act for brievity) 2. few facts relevant for disposal of this writ petition are as under:the president and several other members of the 'shimoga zilla madivala sangha' constituted a society called as 'shimoga zilla madivala maha sangha' respondent no. 2 herein which was registered with registration no. 18/73-74. during the year 1998 disputes arose between the members of the said society, as a result.....

Judgment:
ORDER

Rangavittalachar, J.

1. The ' Shimoga Zilla Madivala Sangha' by its President and the Secretary have filed this Writ Petition challenging the order of the District Registrar of Societies, Shimoga vide Annexure F dated 23-2-2000 recalling his earlier order passed by him on 24.10.1998 in exercise of his powers u/s 7 of Karnataka Societies Registration Act, 1960 (Hereinafter referred to as THE ACT for brievity)

2. Few facts relevant for disposal of this Writ Petition are as under:

The President and several other Members of the 'Shimoga Zilla Madivala Sangha' constituted a society called as 'Shimoga Zilla Madivala Maha Sangha' respondent No. 2 herein which was registered with Registration No. 18/73-74. During the year 1998 disputes arose between the members of the said society, as a result some of the members of the said society including the present President and the Secretary of Petitioner's Society resigned and formed a parallel society under the name of 'Shimoga Zilla Madivala Sangha', prepared separate byelaws and applied for registration to the first respondent. First respondent in exercise of his powers under Section 7 of the Act by order dated 24.10.1998 in No. 170 SOR SMG/98-99 registered the society in the said name. On account of similarity in the names of the petitioner and the second respondent, society disputes again arose as a result of which certain civil suits came to be filed and withdrawn. As a sequel to the said dispute, second respondent filed a complaint before the Registrar seeking for recalling the order passed on 24-10-1998 ordering for registration of the petitioner society. The Registrar has recalled the order of Registration granted to petitioners society by his order dated 24-10-1999.

3. This order is under challenge.

4. A detailed statement of objections has been filed by respondents. According to the second respondent, petitioner obtained the registration by giving a false declaration vide Annexure R 5 dated 12-10-1998 stating that there is no other society bearing a similar ILR S. Z.M. Sangha & Anr. vs District Registrar, & Anr. 2909 name to that of the petitioner society. It is on account of this declaration the Registrar has recalled the order.

5. The State Government has defended the order.

The contention of Sri Rajgopal - learned Counsel for the writ petitioner is that once the District Registrar exercises the power under Section 7 of the Act and grants registration, there is no power available to him to recall the said order under the scheme of the Societies Registration Act except in cases covered by Section 27 of the Act. This is not a case where circumstances under Section 27 existed and necessitated the Registrar to exercise that power. Therefore the order of the Registrar at Annexure F is without jurisdiction.

6. On the other hand Sri Venkatachala - learned Counsel for the contesting respondent No.2 submitted whenever a party by misrepresentation obtains an order, such an order is nullity in the eye of law and can always be recalled.

7. For proper appreciation of the contentions, it is necessary to refer to the relevant provisions of Karnataka Societies Registration Act regarding the legal requirement of registration and the powers of Registrar to cancel registration. Karnataka Societies Registration Act requires and provides for registration of societies sought to be established by a group of persons for literary development, charitable, scientific purposes and other activities. Sections 5 & 6 of the Act enables seven or more persons who are above the age of 18 years to form an association by subscribing to a Memorandum of Association and to submit the application annexing the Memorandum of Association or byelaws to the jurisdictional Registrar of Societies for registration. The Registrar if he considers that the objects of the society is lawful and otherwise fulfills all the requirements of law may register the society. Even if the above requirements are full filled, but if he finds the name of the society sought to be registered resembles the name of an already existing society, he may refuse to register under Section 7 of the Act. Section 7 reads as under:

'Sec 7: Societies not to be registered with undesirable names: No society shall be registered by a name which, in the opinion of the Registrar, is undesirable. A name which is identical with, or too nearly resembles, the name by which a society in existence has been previously registered, may be deemed to be undesirable by the Registrar under this Section'.

8. This power under Section 7 has to be exercised at the time of considering the application for registration, and not after the orders for registration and the society starts functioning. In other words once he orders for registration and the society is registered, the power under Section 7 gets exhausted, and becomes unavailable and he cannot subsequently recall the said order either under Section 7 or under any other provision of the Act except for a different reason stated in Section 27 of the Act i.e, if he finds the society is guilty of acts of omissions or commission mentioned in Section 27, which reads:

'Sec 27, Cancellation of registration and dissolution of certain Societies:-

(1)If it appears to the Registrar that any society registered or deemed to be registered under this Act, is carrying on any unlawful activity or allows unlawful activity to be carried on within any premises under the control of the society (the Registrar may hold an enquiry or authorize any officer to hold an enquiry into the activities of such society and in respect of every such enquiry, the Registrar or the authorizer officer) shall have the same powers as are specified in sub-section (2) of Section 25 (The authorized officer shall, on completion of the enquiry, submit a report to the Registrar).

(2) if on an enquiry under sub-section (1), the Registrar is satisfied that any such society has been carrying on any unlawful activity or has allowed any unlawful activity to be carried on within any premises under the control of the society, he shall, after giving reasonable notice to the society to show cause why the registration of the society should not be cancelled and the society dissolved, and after considering the representations, if any, made on behalf of the society, by order cancel the registration of the society and direct dissolution of the society; and thereupon the assets of the society shall be distributed, and the liabilities discharged, in the same manner as if the society had been dissolved under Section 22'.

9. Apart from Section 27 of the Act, there is no other provision in the Act that confers such a power on the Registrar. In other words, there is no power to order for cancellation of Registration of an already registered society on the ground stated in Section 7 with the only exception of Section 27. Conferring such a power would amount to providing him the authority to review his order passed under Section 7 of the Act. Such a power must be expressly conferred by the statutes and there cannot be any such inherent power to do so.

10. In the facts of the present case, there is no dispute that the first petitioner society was registered on 24.10.1998 with a separate registration number assigned and the society is functioning. A year after the society started functioning with the said registration number on the complaint of respondent no.2, the registrar purporting to exercise his power under Section 7 of the Act on the ground already stated, has ordered for cancellation, which in effect amount to reviewing his own order passed on 24.10.1999 without there being any power. Hence the same is without jurisdiction and is liable to be quashed and accordingly quashed.

11. In the result, this Writ Petition is allowed. The impugned order at Annexure F is quashed.