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1997 DIGILAW 471 (KER)

C. M. Z. Musliar v. Aboobacker

1997-12-08

S.SANKARASUBBAN, U.P.SINGH

body1997
Judgment :- S. Sankarasubban, J. This Writ Appeal has been filed by the additional fourth respondent in O.P. No. 9323/90. The (Original Petition was filed by A.P. Aboobacker Musaliar, who is the first respondent in the appeal. The Original Petition was filed challenging Ext. P3 proceedings passed by the District Registrar (General), Kozhikode. 2. The appellant is the General Secretary of the Samastha Kerala Jem-eyyathul Ulama (hereinafter referred to as 'the samastha' ). The Samastha had its genesis as an unregistered organisation of Muslim Religious Pundits in Kerala constituted in 1925 for the purpose of diffusion of religious teachings to the Sunni Muslims in Kerala and outside. The organisation was later registered under the Societies Registration Act and the registration number is 5-1/1934-35. 3. The objects of the 'Samastha' is contained in the Memorandum of Association and the Rules and Regulations. The Apex Body of the Samastha is a body of 40 persons, who have deep knowledge in religious studies elected by the General Committee, which is known as 'Musavara'. The 'Musavara is originally elected by the General Committee from the persons who are highly qualified in religious learning and is almost a permanent body. The vacancies in the Musavara are filled up by the General Committee on the recommendation of the Musavara. No election of Musavara members is prescribed to be conducted regularly or periodically. 4. The second respondent in the Original Petition, E.K. Aboobacker Musaliyar was the General Secretary of the Samastha in the year 1956 and continued till his death in 1996. The petitioner in the Original Petition was a member of the Musavara. By the end of 1988, according to the appellant, there was an attempt for revolt in the Samastha engineered by the petitioner and his henchmen. In 1989, the petitioner and his henchmen failed in their attempt through courts. Thereafter, they convened meetings of their faction and began to make false claim of constituting separate Samastha and separate establishments. When the activities of the petitioner and his henchmen were against the interest of the Samastha, the matter was considered in the meeting of the Musavara held on 18.2.1989. The petitioner and five others were expelled from the Musavara. According to the petitioner, the Musavara that was in existence till 1989, was not a properly elected group of representatives. When the activities of the petitioner and his henchmen were against the interest of the Samastha, the matter was considered in the meeting of the Musavara held on 18.2.1989. The petitioner and five others were expelled from the Musavara. According to the petitioner, the Musavara that was in existence till 1989, was not a properly elected group of representatives. In the general body meeting held on 5.3.1989, 40 members were elected and constituted a Musavara of the Samastha. Again in December, 1989 the general body met and elected the very same persons for the year 1991. The petitioner was elected as the Secretary. 5. In terms of S.4 of the Societies Registration Act, the petitioner as the Secretary of the General Committee, submitted a list of Musavara of Samastha for the year 1990-91 before the first respondent on 1.1.1990. which is produced as Ext. P1 in the Original Petition. According to the second respondent, he was the competent person to convene the general body meeting and he did not call any meeting on 5.3.1989. He further submitted that since already Musavara is in existence, there was no question of election of a new Musavara. The second respondent also denied that the petitioner was elected as Secretary. He further contended that ever since the registration of 'the Samastha in 1934, the list of Musavara members was furnished to the first respondent under S.4 of the Societies Registration Act. According to him, for the year 1990, he submitted Ext. P2 list on 6.1.1990. There were 37 members in Ext. P2 list. 3 vacancies in the Musavara were not recommended by the Musavara and hence not filled up by the General Committee. Thus, the first respondent had two lists before him, viz., Exts. P1 and P2. The first respondent Registrar called for both the parties and after scrutiny, accepted Ext. P2 list by his proceedings, Ext. P3. It is Ext. P3 that was challenged before the learned single Judge. The learned single judge on an interpretation of S.4 of the Societies Registration Act held that the Registrar had no power to resolve any dispute between two rival groups. Hence, the learned single judge held that Ext. P3 was issued incompetently and without jurisdiction. Ext. P3 was quashed. During the pendency of the appeal, the second respondent died and the present appellant was thereafter elected as General Secretary. Hence, the learned single judge held that Ext. P3 was issued incompetently and without jurisdiction. Ext. P3 was quashed. During the pendency of the appeal, the second respondent died and the present appellant was thereafter elected as General Secretary. He was impleaded as additional fourth respondent. He has filed the appeal against the judgment of the learned single judge. 6. The question for consideration is what is-the power of the Registrar under S.4 of the Societies Registration Act. S.4 of the above Act states as follows: "4. Annual list of managing body to be filed :- Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of Joint-stock Companies, of the names, addresses and occupations of the Governors, council, directors, committee or other governing body then entrusted with the management of the affairs of the society". Thus, under this section, it is the duty of the Society to submit to the Registrar, the names, addresses and occupations of the governors, council directors, committee, or other governing body then entrusted with the management of the affairs of the society. Normally if there is no dispute there will be only one Managing Committee or Governing Committee. So the Registrar will have no difficulties in accepting the same. But the question arises whether there is difference or dispute as to who are the members of the Governing Committee. Is there any discretion vested with the Registrar to accept one list and reject the other. The learned single judge held that the Registrar has no power to decide a dispute under S.4 of the Societies Registration Act. 7. Before considering the question as to whether any power is vested in the Registrar, we have to find out the importance of the submission of the list of Managing Committee. The learned single judge held that the Registrar has no power to decide a dispute under S.4 of the Societies Registration Act. 7. Before considering the question as to whether any power is vested in the Registrar, we have to find out the importance of the submission of the list of Managing Committee. Under S.5 of the Act, the property, movable and immovable, belonging to a society registered under the Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their title. Under S.6, every Society registered under the Act may sue or sued in the name of the President, Chairman or Principal Secretary or Trustees, as shall be determined by the rules and regulations of the Society, and in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. Thus, we find that there has to be a list containing office bearers or the members of the governing body with whom the property may vest or who can represent the Society in the litigations. Hence, the filing of the list cannot be lightly brushed aside as merely an administrative act. 8. It is well accepted that the conferment of statutory powers must be construed as impliedly authorising everything which could fairly and reasonably be regarded as incidental or consequential to the power itself. Wade in Administrative law, Fifth Edn. at page 217 has held as follows: "A statutory power will, however, be construed as impliedly authorising everything which can fairly be regarded as incidental or consequential to the power itself; and this doctrine is not to be applied narrowly Statutory powers therefore, have considerable latitude, and by reasonable construction the courts can soften the rigour of the ultra vires principle". See Craies on Statute Law, Seventh Edn. See Craies on Statute Law, Seventh Edn. and at page 111, it was said: "If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer that the statute by implication empowers that detail to be carried out. Thus, in Cookson v. Lee - (1854) 23 Q Ch. 473 - a private Act vested certain land in trustees for the purpose of enabling them to sell the lands for building purposes, but the Act contained no express power to expand any portion of the purchase moneys in setting out the lands or in making roads. In these circumstances, the court held that, having regard to the object of the Act - namely, the sale of the property as building land - such power ought to be implied". 9. In the case of State of U.P. v. Batuk Deo Pati Tripathi and Ann - (1978) 2 SCC 102 - the question arose as to the power of the High Court under Art.235 of the Constitution of India. The Supreme Court held that the High Court has, therefore, the power under Art.235 itself to frame rules for regulating the manner in which the control vested in it may be exercised. The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. In Khargram Panchayat Samiti v. Sate of West Bengal - (1987) 3 SCC 82 - the above question case up for consideration. There, their Lordships were considering S.117 of the West Bengal Panchayat Act, 1973. Under that Section, the Panchayat had the power to grant licence for holding a 'hat' or 'fair'. The question was whether it had the consequential or incidental power to specify a day for holding of such'hat or'fair'. In considering that question, the-Supreme Court held as follows: "The conferment of the power to grant a licence for the holding of a hat or fair under S.117 of the Act includes the power to make incidental or consequential orders for specification of a day on which such hat or fair shall be held. In considering that question, the-Supreme Court held as follows: "The conferment of the power to grant a licence for the holding of a hat or fair under S.117 of the Act includes the power to make incidental or consequential orders for specification of a day on which such hat or fair shall be held. The decision of the High Court runs counter to the well accepted principles. It overlooks that the statutory bodies like the Panchayat Samiti enjoy a wide "incidental power' ie., they may do everything which is "calculated to facilitate, or is conductive or incidental to, the discharge of any of their functions'" 10. In the aforesaid background, we have to find out the scope of S.4 of the Societies Registration Act. The filing of the returns with regard to the office bearers is for a purpose. The mere fact that the section does not clearly state that the Registrar has got power with regard to the acceptance of the returns does not mean that he can accept any number of returns with regard to the same society. That will not serve the purpose of filing of the returns as contemplated. Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body. In view of the above, we are of the opinion that the proceedings of the Registrar, Ext. P3, is correct. Hence, we allow the appeal and dismiss the Original Petition.