@JUDGMENTTAG-ORDER
Honorable Mr. Justice K.Chandru
1. These three writ petitions were the fall out of the earlier writ petitions filed before this Court by the members of Thirumalapuram Nadars Uravinmurai Sangam. The first writ petition (W.P.(MD) No. 3610 of 2006) herein was filed by one Pandiveeran seeking to challenge the order dated 30.09.2004 passed by the second respondent and for a direction to the first respondent to pass appropriate orders after holding an enquiry into the affairs of Thirumalapuram Nadars Uravinmurai Society with registration No. 177/98 to ensure the society being administered in accordance with bylaws as well as the provisions of the Tamil Nadu Societies Registration Act, 1975. The writ petition was admitted on 24.4.2006. Pending the writ petition, no interim order was granted. On notice, the second respondent has filed a counter affidavit, dated 19.06.2006.
2. W.P.(MD) No. 8249 of 2006 was filed by one Mariappan seeking for a direction to the first respondent to consider his representation dated 14.5.2006 and to take appropriate action by holding an enquiry into the affairs of the society. In that writ petition, notice regarding admission was ordered on 12.09.2006. On notice, the second respondent has filed a counter affidavit, dated 23.01.2007.
3. W.P.(MD) No. 8054 of 2010 was filed by one K. Murugesan seeking for a direction to forbear the respondents 3 to 6, i.e., the District Registrar of Societies, Periakulam, the Chief Educational Officer, Theni, the District Educational Officer, Uthamapalayam, Theni District and the District Elementary Educational Officer, Theni District from approving Form VII submitted by the 7th respondent, i.e., Thirumalapuram Nadargal Uravinmurai Sangam for the period from 2010-13 as well as the educational agency of the Nadar Higher Secondary School and Nadar Elementary School based on the enquiry report, dated 17.3.2003. This writ petition was admitted on 30.6.2010. Pending the writ petition, no interim order was granted. On notice, the third respondent has filed a counter affidavit, dated 02.08.2010 and respondents 7 to 12 have also filed a counter affidavit, dated 28.07.2010.
4. The earlier round of litigations, in which some of the petitioners / respondents were also parties were rejected on the ground that as against the action of the Registrar of Societies, the petitioners can move the civil court if so aggrieved and cannot file writ petitions. Even during the pendency of the earlier writ petitions, the first two writ petitions came to be filed and the other writ petition came to be filed knowing fully well of the fact that those writ petitions were dismissed by an order dated 12.10.2007 in W.P. Nos. 2594 of 2004, 499 and 500 of 2005.
5. When these matters came up for hearing, Mr. AR.L. Sundaresan, learned Senior Counsel, Ms. D. Geetha and Mr. S.S. Dundar pleaded that these matters must once again go before a larger bench because of conflicting opinions among various subsequent division benches. The role of the Registrar should not be minimized as that of a post office. Reference were made to those judgments. Hence they requested the matters should be referred for determination by an another Full Bench or a Larger Bench. Already one suit is pending between the parties before the civil court, over its order, a CMA also came to be filed before the lower appellate court. Hence it is necessary to refer to those judgments.
6. A Full Bench of this court presided by P. Sathasivam, J. (as he then was) in
18. The power of the Registrar to enquire into the affairs of the society is only to hold a summary inquiry for his own satisfaction. The said power cannot be construed as the power of appeal. u/s 36, the Registrar has not been empowered to adjudicate upon the conflicting claims to represent the society based upon question of fact. A plain reading of Section 36 shows that the Registrar could look only the provisions of the Act and the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form No. VII in order to effect change in the register. The power of the Registrar to call for information and explanation u/s 34 does not contemplate any power to examine witnesses or to allow opportunity for cross examination of witnesses. The power in our view is incidental and it is only for the purpose of maintaining correct records. As the power to conduct inquiry is only limited in order to find out whether constitution of members are valid, the enquiry is limited only for the purpose of making entries in the register. However, the exercise of power must not be arbitrary as the orders passed or directions issued by the Registrar is amenable to challenge in the Writ Jurisdiction.
20....Hence, the power under sub-section (9) of Section 36 cannot be stretched to a power on the Registrar to direct the registered society to hold fresh election. A direction to hold fresh election would amount to indirectly setting aside the earlier election and such power is not conferred on the Registrar under any of the provisions of the Act. So long as the election is not declared invalid in the manner known to law, no direction for fresh election could be ordered. Validity of the election could very well be decided only by the competent Civil Court as the parties are entitled to let in their evidence to sustain their respective claims. In the event the Registrar satisfies himself as to the particulars furnished in Form VII as correct, he should enter the names in the register maintained for that purpose. In the event if he does not satisfy as to the particulars and thereby does not accept Form VII, he has to issue a direction relegating the parties to approach the Civil Court for appropriate orders and thereafter shall act as per the orders of the Civil Court. Accordingly, the issue is answered....
7. Subsequently, a division bench presided by A.P. Shah, C.J. (as he then was) and V. Ramasubramanian, J., vide its judgment in
39.Therefore, we hold that a writ would not lie against any ministerial act performed by the Registrar of Societies under the Provisions of the Tamil Nadu Societies Registration Act, including the acceptance or rejection of Form No. VII. Whenever Form No. VII is filed, the District Registrar can only call for further information/explanation and file the same along with the Form u/s 34 and he is not entitled to adjudicate any dispute. Therefore, the direction issued by the District Registrar in his order dated 30.5.2007 holding the elections held on 28.1.2007 to be invalid and directing the parties to go in for fresh election, cannot be sustained, on account of the fact that he exercised a jurisdiction not vested in him by law while accepting Form VII.
8. Thereafter, another division bench in P.V. Kadiravan Vs. Kallar Kalvi Kazhagam, Usilampatti and others reported in (2009) 4 MLJ 461 after referring to paragraph 18 of the Full Bench judgment in paragraph 23 held as follows:
23. As seen from Paragraph 18 of the judgment of the Full Bench extracted above, the Full Bench dealt with the power of the Registrar, both u/s 36 and u/s 34 of the Act. Since Section 36 of the Act empowers the Registrar to conduct an inquiry, the Full Bench held that the exercise of such power u/s 36 should not be arbitrary as the orders passed by the Registrar would be amenable to challenge in the writ jurisdiction. But, insofar as the power u/s 34 is concerned, the Registrar is not expected to conduct any inquiry except to call for additional information or explanation and that too just for the purpose of filing it as Annexure to the original document. Full Bench has clearly held that power u/s 34 is only incidental and it is only for the purpose of maintaining correct records.
9. Once again another division bench presided by P.K. Misra, J., (as he then was) in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee, Karisal Vs. District Registrar, Cheranmahadevi, Tirunelveli District and others reported in (2009) 2 MLJ 370 dealt with the scope of the Full Bench judgment and struck different cord. In paragraphs 32 and 36 held as follows:
32. By characterizing the power of the Registrar is merely a ministerial function, the statutory functions and supervisory role, which the Registrar is bound to perform, would be diluted. If we must assume that Registrar will not even undertake any form of appraisal, it will mean that blind with realities that Civil Court litigation does not all end too soon and attack will arise with the maximum period of tenure of office bearers for 3 years provided under the Act which itself expire before conclusion of the proceedings before the Civil Court.
36. In view of the foregoing analysis of all the relevant provisions and the ratio of the Full Bench decision, our conclusions are as follows :
(i) The ratio of the Full Bench decision is only to the effect that the Registrar does not have any power either u/s 34 or 36 of the Tamil Nadu Societies Registration Act, 1975, to cancel the election to the committee, and, or to direct holding of fresh election.
(ii) If the Registrar of the Societies is not satisfied about the correctness of the Form VII, he need not take such Form VII on file, but he can direct the parties to approach the Civil Court to establish the validity of the election.
(iii) When any notice in Form VII is received by the Registrar, he is required to find out whether such notice has emanated from the appropriate authority. Obviously, he is also required to find out whether the persons claiming to be the members are in fact the members of the society. Since the register maintained in the office of the Registrar is supposed to contain the names of such members, it is not difficult for the Registrar to find out as to who are the members of the society.
(iv) Section 36 of the Act contemplates that, if necessary, the Registrar can call upon the persons likely to have information, knowledge in the matter for enquiry and for recording of statements on oath.
(v) Such conclusion by the Registrar is only for the purpose of maintenance of correct records, but any such order regarding membership of the society or election to the committee for the purpose of maintenance of records is obviously subject to the decision of the Civil Court, whether final or interlocutory order. However, till any contrary order is passed by the Civil Court, either finally or even by interlocutory order, the authorities under the Tamil Nadu Societies Registration Act, 1975 or under the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973, are not expected to go beyond such taking of Form VII. There is no concept of accepting as many as Form VII are possible as adoption of such a course would obviously result in chaotic conditions.
(vi) It is immaterial as to whether the order of the Registrar is considered as "administrative" or "ministerial". If, while passing the order, the Registrar acts arbitrarily, it would be open to the Writ court to consider the matter within the accepted parameters of writ jurisdiction and pass any appropriate order. Under what circumstances the High Court can interfere would obviously depend upon the facts and circumstances of each case.
10. The division bench while commenting upon the earlier division bench judgment in R. Muralidaran''s case (cited supra), in paragraphs 20 and 23 held as follows:
20. From the above analysis, it is apparent that the Division Bench in R. Muralidharan''s case and the subsequent decisions, which have merely followed the R. Muralidharan''s case, have been rendered by ignoring many relevant and vital statutory provisions and statutory rules such as Sections 26(4), 29, 35, 37(c), 46 to 48 of the Act and Rules 49, 50 and 51 of the Rules. Therefore, it can be concluded that such decisions have been rendered per incuriam.
23..... It is no doubt true that acceptance of Form No. VII in one way or the other by the Registrar would not finally determine the status of the warring parties, which is to be decided in the Civil Court. But, it is another thing to say that the Registrar will have no role in the matter and he has to merely act as a rubber stamp. If such a view is to be accepted, chaotic situation would prevail in many of the societies. In the above context, the relevance and importance of Chapter V of the Act have been completely lost sight of, almost in all the decisions.
11. This decision of the division bench came to be considered by the subsequent division bench presided by Prabha Sridevan, J., in C. Dharmalingam Vs. The District Registrar, Office of the District Registrar, Madurai South, Palace Road, Madurai and others reported in 2010 (3) CTC 390. The subsequent division bench took exception to the earlier bench headed by P.K. Misra, J commenting upon the earlier R. Muralidaran''s case and holding it as per incuriam and in paragraphs 20 and 22, it was observed as follows:
20.... With due respect, the latter Division Bench in 2008 4 L.W. 1080 could have said that if even a ministerial act is so contrary to law, the Court will have no hesitation in interfering under Article 226, instead of commenting upon the entire judgment as per incuriam.
22. In R. Muralidaran, the Division Bench has dealt with in detail about the power of the Registrar which can either administrative, quasi-judicial or ministerial and to what extent the order where amenable to judicial review. The Division Bench also held that acceptance of Form No. VII by the Registrar is not a declaration regarding the validity of the election. Therefore the Division Bench also said, following the Full Bench, that the party aggrieved should only go before a civil court and a person aggrieved by an election cannot challenge the acceptance or rejection of From-VII by the Registrar as a short cut to invalidate the election. In 2008 (4) L.W.1080 too, in the conclusion, the Division Bench held that the Registrar does not have power to cancel the election or to direct holding of election and if the Registrar is not satisfied about the correctness of Form No. VII, he need not accept it and he can direct the parties to approach the Civil Court. When Notice in Form No. VII is received by the Registrar, he has to verify certain particulars and finally held it is immaterial as to whether the order of the Registrar is considered as "administrative" or ministerial, if it is arbitrary, the writ court can consider. Therefore, we do not see any deviation in either of the orders from the principles laid down by the Full Bench in Christian Suvi Case. But, we do hold, with due respect, that the per incuriam comment was in deviation from the principles laid down in Philip Jeyasingh Full Bench.
12. Apart from this, on the earlier division bench (headed by P.K. Misra, J) commenting upon previous division bench judgment as per incuriam was also held to be not proper. The division bench headed by Prabha Sridevan J., in paragraph 17 referred to several Supreme Court judgments and emphasized the duty of smaller bench or coordinate bench either disagreeing or deviating from that decision and in paragraph 17 it was observed as follows:
17. With great respect, the Division Bench, which held that the decision in R. Muralidaran''s case was per incuriam, had failed to take note of the law laid down regarding the binding nature of the precedents of a co-ordinate Bench. In
57. We may notice some decisions of this Court as regards the binding nature of the precedents of a coordinate Bench. In Union of India v. Raghubir Singh8 this Court has held: (SCC pp. 777, paras 27-28)
27.... It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges....
28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.
See also Union of India v. Godfrey Philips India Ltd. (1995) 4 SCC 369
58. In
5.... Indeed, no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench.
59. In
12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2)
(3)... It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
60. We are in agreement with all the above observations of this Court. Ranjan Chemicals was bound by the decision rendered in
13. While the binding precedent of the decision of the Full Bench directs parties to go to the civil court, the aggrieved persons are not satisfied with going before the civil court on the ground that it was time consuming and procedural wrangle will defeat getting justice. That was why even the division bench headed by P.K. Misra, J found a via media of clothing the Registrar with some minimum power. In any event, ultimately the division bench in paragraph 45 of its judgment had recommended the State Government to consider seriously the possibility of amending the Tamil Nadu Societies Registration Act for including specific provisions relating to resolution of election disputes through the mechanism of an Election Tribunal with a provision for an ultimate appeal or revision before a senior judicial officer in the rank of a District Judge. In paragraph 45, the division bench had observed as follows:
45. Last but not the least, we would like to make some suggestions to the State Government.
It is no doubt true that, as observed by the Full Bench, the District Registrar cannot decide an election dispute and such disputes are to be finally decided by the Civil Court. As is well known, the right to raise a dispute regarding any particular election may not flow from common law, but would depend upon the statutory provisions. It has been observed in several decisions of the Madras High Court that in the absence of statutory provision providing for an election dispute, the matter is required to be decided in a Civil Court. Judicial notice can be taken of the fact that in view of the uncontrollable docket explosion, the Civil Courts take their own time in deciding many important matters and as such, matters relating to disputes flowing from the Act can hardly, if ever, be decided within a reasonable time or even within three years period, which is the outer time limit for the committee. Once such disputes remain pending, further controversies are spawned giving rise to more complication and ultimate sufferer is the society. Keeping in view the above aspect, we think it is high time for the State Government to consider seriously the possibility of amending the Societies Registration Act, to include a specific provision relating to resolution of any election dispute through the mechanism of any Election Tribunal with a provision for ultimate appeal or revision before a senior Judicial Officer in the rank of District Judge as has been done in Uttar Pradesh and may be in a few other States. This would ensure smoother functioning of the societies and less inflow of such internecine disputes to the ordinary Civil Courts.
14. Though that judgment was rendered as early as 31.10.2008, it looks as if the State Government never took note of the suggestion made by this court. It may be because the official respondents before the division bench was only the District Registrar and District Elementary Officer. Hence the suggestions would not have reached the Government. Therefore, in order to avoid any lack of communications, this court directs a copy of the judgment should be marked to the State Government, so that they can take an appropriate decision in this regard. Accordingly, a copy of this order will be marked to the Secretary to the Government for an appropriate consideration.
15. In view of the above binding legal precedents, this court is not inclined to accept the submissions made by the counsels to take a different stand than what was already decided. Hence all the three writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.
