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2017 DIGILAW 1138 (GAU)

Merang Jamir v. State of Nagaland

2017-08-19

L.S.JAMIR

body2017
JUDGMENT : 1. This writ petition is directed against the order dated 3.8.2016 issued by the Secretary to the Government of Nagaland and Ex-Officio Registrar of Societies, Nagaland whereby, the registration of the Nagaland Rifle Association (‘NRA’)/petitioner No. 2 was cancelled. 2. Heard Mr. Imti Longjem, learned counsel for the petitioners. Also heard Mr. K. Serna, learned Senior Additional Advocate General, Nagaland assisted by Ms. Livika, learned Government advocate appearing for the respondent Nos. 1 and 2 as well as Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel appearing for the respondent No. 3. 3. Mr. Imti Longjem, learned counsel for the petitioners submits that the petitioner No. 1 is the President of Nagaland Rifle Association who is the petitioner No. 2 in the present writ petition. The petitioner No. 1 is involved in lawful marksmanship/shooting activities since his early days and alongwith some likeminded friends had formed the Dimapur Rifle Association of Nagaland (‘DRAN’). The petitioner No. 1 formed the Aries Rifle and Pistol Academy and since the year 2010, the said academy has been promoting the shooting sport in the State. The Aries Rifle and Pistol Shooting Academy was given provisional affiliation by the National Rifle Association of India (‘NRAI’) by letter dated 24.3.2014 wherein, the petitioner No. 1 was informed by the NRAI that in view of nonfunctioning of the Nagaland State Rifle Association (‘NSRA’) has decided to grant Aries Rifle and Pistol Academy provisional affiliation without any voting right till such time, the State body in Nagaland becomes operational. The petitioner No. 1 and likeminded persons formed the Nagaland Rifles Association (‘NRA’) in order to promote the sport in the entire State of Nagaland. Steps were taken to get the NRA registered under the Societies Registration Act, 1860. Accordingly, the application by the NRA alongwith all documents was placed for consideration before the Dimapur District Planning and Development Board which was finally recommended in its meeting held on 6.7.2015. Accordingly, by letter dated 6.7.2015, the Deputy Commissioner, Dimapur forwarded the recommendation of the Dimapur District Planning and Development Board to the Registrar of Societies, Nagaland. Thereafter, in terms of the provision of the Societies Registration Act, the Registrar of Societies by an order dated 14.7.2015 issued the certificate of registration to the NRA. Accordingly, by letter dated 6.7.2015, the Deputy Commissioner, Dimapur forwarded the recommendation of the Dimapur District Planning and Development Board to the Registrar of Societies, Nagaland. Thereafter, in terms of the provision of the Societies Registration Act, the Registrar of Societies by an order dated 14.7.2015 issued the certificate of registration to the NRA. In terms of the registration, the petitioner No. 1 on behalf of the NRA requested the NRAI to allow the NRA for affiliation. The governing body of the NRAI in its meeting held on 23.10.2015 accorded affiliation to the NRA with voting right which was informed to the petitioner No. 1 by letter dated 28.10.2015. 4. It is submitted that after the NRA was affiliated to the NRAI, it has been promoting the sport in the State in all earnest and had conducted various championship in the State successfully. However, the petitioner received a show cause notice dated 5.7.2016 from the respondent No. 2 asking to show cause as to why the registration of the NRA should not be cancelled. The said show cause notice was issued on the basis of complaint made by the respondent No. 3/NSRA on the ground that the NRA has a similar name with NSRA and that wrong information was furnished while seeking registration. It was further alleged that the President of the NRA is a member of the NSRA and also a member of the Kohima Rifle Club and the act of the NRA has become subversive to the objects of the NSRA. Further allegation was made that the NRA has fraudulently inducted the Director General of Police, Nagaland as ex-officio member without his consent for registering the association. He “submits that though the said show cause notice dated 5.7.2016 was issued in pursuance to a complaint of the NSRA, the said complaint was not furnished to the petitioner. However, the petitioner replied to the show cause notice on 18.7.2016 and it was only on that day that a copy of the complaint dated 15.6.2016 made by the NSRA was furnished to the petitioners. However, despite the reply dated 18.7.2016, the respondent No. 2 issued the impugned order dated 3.8.2016 cancelling the registration of the NRA. 5. However, the petitioner replied to the show cause notice on 18.7.2016 and it was only on that day that a copy of the complaint dated 15.6.2016 made by the NSRA was furnished to the petitioners. However, despite the reply dated 18.7.2016, the respondent No. 2 issued the impugned order dated 3.8.2016 cancelling the registration of the NRA. 5. Learned counsel for the petitioners submits that in the impugned order dated 3.8.2016, it has been mentioned that the registration of NRA with identical name with similar aims and objects has caused prejudice to the NSRA. It was further stated that the petitioner No. 1 is a member of the NSRA and Kohima Rifle Club and, therefore, the petitioner No. 1 is aware of the existence of NSRA and its aims and objects. However, during registration of the NRA such facts were withheld by the petitioner No. 1 in order to obtain the registration. It was further alleged that the NRA had inducted the Director General of Police, Nagaland as ex-officio member without his consent thereby amounting to disclosure of wrong information. Further, in the order dated 3.8.2016, it was held that two similar societies with similar aims and objects is not permissible as per the Societies Registration Act and, therefore, there would be conflict of interest which shall be detrimental to the aims and objects of, the NSRA which has been registered prior to the NRA. It was, therefore, held in the order dated 3.8.2016 that the registration of NRA was wrongly obtained and the certificate of registration was granted in violation of section 3A and, therefore, in exercise of powers under section 23(1) of the Societies Registration Act (Second Amendment) Act, 1984, the registration of NRA was cancelled. 6. Learned counsel for the petitioners submits that in the State of Nagaland, the Societies Registration Act, 1860 has been amended by the Societies Registration (Nagaland First Amendment) Act, 1969, the Societies Registration (Nagaland Second Amendment) Act, 1984 and the Societies Registration (Nagaland Third Amendment) Act, 2009. He submits that proviso to section 3(1) of the Act provides that the Registrar has the discretion to issue notice to any person for inviting objections or effect verification through the concerned Deputy Commissioner with regard to the proposed registration and consider all objections before registering a society. He submits that proviso to section 3(1) of the Act provides that the Registrar has the discretion to issue notice to any person for inviting objections or effect verification through the concerned Deputy Commissioner with regard to the proposed registration and consider all objections before registering a society. No such exercise was taken by the respondent No. 2 and the NRA was accordingly allowed to be registered. It is also submitted that section 3(2) of the Act provides, inter alia, that the Registrar may refuse to register the society if the name of the society is identical with that of any other society previously registered. He submits that the relevant word used under section 3(2) of the Act is the word ‘identical’ and not ‘similar’. It is submitted that the name NSRA and the name NRA cannot be construed to be identical under any circumstances and, therefore, the cancellation of the registration of NRA on this ground is in violation of the provision of the Act. 7. Learned counsel for the petitioners further submit that the registration of NRA was purportedly cancelled for being violative of section 3A of the Act. However, he submits that section 3A reveals that the said section deals only with renewal of registration and not cancellation of registration. He also submits that the order dated 3.8.2016 has also held that similar aims and objects of the NSRA and the NRA would cause prejudice to the former. However, it is submitted that the provisions of the Act do not bar association from having similar aims and objects and, therefore, the cancellation of the registration of NRA on this ground too is also bad in law. Learned counsel for the petitioners submits that section 23 of the Act provides that the Registrar may cancel the registration of any society whose office has ceased to be in the State of Nagaland and whose activities are subversive to the objects of the society or whose registration had been wrongly obtained or granted in violation of the provisions of the Act. However, no such allegations has been made that the activities of the NRA is subversive to its objects. Further, section 3(1) also provides that registration of a society can be cancelled if it has been wrongfully obtained or granted in violation of the provision of the Act. However, no such allegations has been made that the activities of the NRA is subversive to its objects. Further, section 3(1) also provides that registration of a society can be cancelled if it has been wrongfully obtained or granted in violation of the provision of the Act. He submits that the registration of NRA was not obtained or granted in violation of the provisions of the Act and, therefore, on this ground too, the impugned order dated 3.8.2016 cannot stand the test of law. Further submission has been made that the ex-officio membership extended to the Director General of Police, Nagaland is not a requirement for registration of a society inasmuch as, the Act clearly provides that seven or more persons named in the Memorandum of Association can form a society The founding member of the NRA had thought it fit to involve some Government functionaries so that the Government is also aware of the activities of the society and that the same would promote transparency. Therefore, there was no question of providing wrong information while seeking registration of NRA nor was there any complaint from the ex-officio member mentioned in the Memorandum of Association. 8. Learned counsel for the petitioners submits that the allegation that the petitioner No. 1 is having membership with other society is not a ground for refusal or cancellation of the registration of NRA. It is also submitted that the Act does not require disclosure of existence of similar society and also there is no bar for registration of society having similar aims and objects. The only bar that is provided under the Act is the bar of registration of identical name and not similar name. The NRA at the time of registration did not withheld any information required by the law and that if there is any action to be taken against the registered society, the same can be done only if the act of such society is subversive to the aims and objects of the society, in that view of the matter, the impugned order dated 3.8.2016 being not justified under any provision of law be set aside and quashed. In this support, learned counsel for the petitioners has placed reliance in the cases of (i) Hussein Ghadialy v. State of Gujarat, (2014) 8 SCC 425 , (ii) Ajaya Kumar Das v. State of Orissa, (2011) 11 SCC 136 , (iii) Arunima Baruah v. Union of India, (2007) 6 SCC 120 and in the case of (iv) State of Madhya Pradesh v. Sanjay Nagayach, (2013) 7 SCC 25 . 9. Mr. K. Serna, learned Senior Additional Advocate General, Nagaland appearing on behalf of respondent Nos. 1 and 2 submits that the NRA has deliberately withheld facts which amounts to wrong information and, therefore, when the complaint was made, the respondent No. 2 had rightly verified into the matter and had thereafter, issued the order dated 3.8.2016 cancelling the registration of NRA. He submits that the petitioner No. 1 is a life member of the NSRA which was granted certificate of registration on 21.8.2013 and also the Kohima Rifle Club which is affiliated to NSRA. The petitioner No. 1 is also a member of Dimapur Rifle Association which is also affiliated to NSRA which information was willingly withheld by the petitioner No. 1 while seeking registration of NRA. He submits that the NRA has identical name, aims and objects to that of the NSRA which was already registered with the Registrar of Societies. However, all the informations were withheld by the petitioner No. 1 and, therefore, the NRA was erroneously granted certificate of registration on 14.7.2015 by the respondent No. 2. As the registration of the NRA was procured by deceit and concealment of facts, the petitioners cannot be allowed to take undue advantage of such illegal action and all benefits illegitimately derived by the petitioners can be neutralized by this court. It is also submitted that section 23(1) of the Societies Registration of Nagaland (Second Amendment) Act, 1984 empowers the Registrar of Societies to cancel the registration of any society registered under the Act and also provides, inter alia, that the registration of a society can be cancelled if the registration has been wrongly obtained and/or granted in violation of the provisions of the Act. The certificate of registration dated 14.7.2015 was granted to the NRA without affording any opportunity to the interested parties and, therefore, the respondent No. 2 on receiving the complaint dated 15.6.2016 from the NSRA had conducted the post-decisional hearing to obliterate procedural deficiency of the pre-decisional hearing in the interest of all the stake-holders. It is submitted that the name of NSRA and NRA are identical and bound to create confusion and deceive persons/clubs/organizations involved in lawful marksmanship/shooting activities in the State. Further, the aims and objects of both the NSRA and NRA being similar and identical, conflict of interest is inevitable more particularly, when the registration of NRA was procured through fraudulent means by concealing materials facts. Non-disclosure of correct information by itself amounts to furnishing wrong information and any certificate of registration obtained by furnishing such wrong and incorrect information would mean a registration which has been wrongly obtained. 10. Learned Senior Additional Advocate General also submits that the NRA in its constitution has included the Director General of Police, Nagaland as one of its ex-officio member without the consent and approval of the said official which is highly objectionable and amounts to furnishing wrong information for registration of NRA. It is further contended that it was not possible to have registration of two parallel associations in the State with identical name, aims and object and that only one Rifle Association in the State/Union Territory could have membership with the NRAI. As the petitioner No. 1 who is also a life member of NSRA had deliberately suppressed such material facts. The same leads to an irresistible conclusion that there was fraud and concealment of facts to procure the certificate of registration in favour of the NRA. It is also submitted that the petitioners had discreetly applied through the Deputy Commissioner, Dimapur for registration of NRA. The NRA was granted registration inadvertently, however, such inadvertence has been corrected by issuing the show cause notice dated 5.7.2016. He submits that the authorities can correct its mistake by following the due process of law which has been done in the present case and, therefore, no interference is required in the impugned order dated 13.8.2016. The NRA was granted registration inadvertently, however, such inadvertence has been corrected by issuing the show cause notice dated 5.7.2016. He submits that the authorities can correct its mistake by following the due process of law which has been done in the present case and, therefore, no interference is required in the impugned order dated 13.8.2016. Learned Senior Additional Advocate General further submits that during the pendency of this writ petition, the respondents has issued a Notification dated 6.8.2016 by appointing the Home Commissioner to the Government of Nagaland as the appellate authority to dispose of appeal against the order of cancellation of registration made under sub-section (1) of section 23 which has been done in exercise of powers conferred under section 23(2) of the Societies Registration Act, 1860 as amended from the time-to-time in its application to Nagaland. In that view of the matter, the petitioners may be directed to approach the appellate authority which is already been constituted. In his support, learned Senior Additional Advocate General placed reliance in the cases of — (i) Union of India v. Narendra Singh, (2008) 2 SCC 750 , (ii) Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363 , (iii) Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161 , (iv) Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Tiuck Owner Association, (2009) 8 SCC 492 and in the case of (v) S. Syed Mohideen v. P. Sulochana Bat, (2016) 2 SCC 683 . 11. Mr. Taka Masa, learned senior counsel appearing for the respondent No. 3 while endorsing the submissions of the learned Senior Additional Advocate General, Nagaland further submits that the NSRA is a registered society since 2013 and since its registration, it has been functioning effectively. The NSRA is the apex body in the shooting fraternity in the State of Nagaland discharging the aims and objects by promoting the sport of shooting in Nagaland and having the affiliation of different District Rifle/Shooting Association like the Kohima Rifle Club, Tuensang District Rifle Association, Dimapur District Rifle Association and Zunheboto District Rifle Association along with their respective affiliated clubs. The petitioner No. 1 has been actively participating in the activities of NSRA and the Kohima Rifle Club. The petitioner No. 1 has been actively participating in the activities of NSRA and the Kohima Rifle Club. The petitioner No. 1 being fully aware that there is an identical society registered under the Act and where he is also an active member had applied for registration of NRA through clear suppression of facts, fraud and misrepresentation. The respondent No. 2 while registering the NRA had acted mechanically on the recommendation of the Dimapur District Planning and Development Board and without issuing any notice to the NSRA prior to registration of NRA. It is also submitted that the NRAI had wrongly affiliated the NRA with voting right without any proper verification and inquiry. The respondent No. 3 after coming to know that an identical association known as NRA was registered had, therefore, sought information through the RTI from the Home Department. The competent authority by letter dated Nil November 2015 had thereafter furnished necessary information to the respondent No. 3 and on verification of the documents furnished, the respondent No. 3 was surprised to know that the respondent No. 2 had registered the NRA which was having similar aims and objects with the NSRA. As the NSRA was registered as early as 21.8.2013 having identical similar aims and object with the NRA, it was mandatory on the part of the respondent No. 2 to have at least issued notice before granting registration to NRA. Therefore, the respondent No. 2 on realizing the mistake, had issued the show cause notice on 5.7.2016 to the petitioners for post-decisional hearing by giving opportunity to both the parties. As the NRA had obtained the registration certificate dated 14.7.2015 through fraud, suppression and misrepresentation of facts, the respondent No. 2 had, therefore, rightly issued the impugned order dated 3.8.2016. Learned senior counsel for the respondent No. 3 also submits that there are no District Associations affiliated with NRA and, therefore, by no stretch of imagination can it be said that the NRA espouses the interest of the State in promoting the sport. He also submits that proviso to section 3(1) provides that the Registrar may in his discretion issue public notice or Specific notice to such persons as he thinks fit inviting objections, or effect necessary verifications through the Deputy Commissioners concerned. He also submits that proviso to section 3(1) provides that the Registrar may in his discretion issue public notice or Specific notice to such persons as he thinks fit inviting objections, or effect necessary verifications through the Deputy Commissioners concerned. As the same was not done by the respondent No. 2 while registering the NRA, the respondent No. 2 had rightly issued the show cause notice in order to cure the defect by giving post-decisional hearing. While referring to section 3(2)(a), learned senior counsel for the respondent No. 3 submits that it is not the sole criteria to only see whether the name of the society is identical with that of any other society but this court has to lift the veil and ascertain whether, the name of the society, aims and objects of the said society is also identical. It is submitted that the inclusion of the Director General of Police, Nagaland as an ex-officio member in the constitution of NRA could have influenced the decision making process of the authority concerned. He also submits that the inclusion of Director General of Police, Nagaland was done without his consent and knowledge which is against the provisions of the Act. Therefore, considering the whole aspect of the nature, no interference is called for in the order dated 3.8.2016. 12. I have considered the submissions forwarded by the learned counsel for the parties. 13. This court has considered the impugned order dated 3.8.2016. A reading of the same would indicate that the NRA which was registered, has a similar name, aims and objects with that of the NSRA. The order dated 3.8.2016 further indicates that the name, aims and objects of NRA is identical with that of the NSRA and simultaneous registration of NRA with identical name and with similar aims and objects has caused prejudice to the NSRA. It was, therefore, the opinion of the respondent No. 2 that the existence of two similar societies with similar aims and objects is not permissible as per the Societies Registration Act and in the event of allowing both the societies to continue to function with similar aims and objects and with similar name, conflict of interest and inconvenience in future is inevitable and ultimately it shall be detrimental to the aims and objects of the NSRA which has been registered prior to the NRA. The respondent No. 2, therefore, came to the conclusion that the registration by NRA was wrongly obtained and the certificate of registration was granted in violation of the provisions of section 3A of the Act. Therefore, in exercise of section 23(1) of the Societies Registration (Nagaland Second Amendment) Act, 1984, the registration of NRA was cancelled. 14. This court has considered section 3A of the Act. A reading of the same provides only for renewal of registration and not for cancellation of registration. In terms of the impugned order dated 3.8.2016, this court is, therefore, unable to comprehend as to how the certificate of registration in respect of NRA is said to be granted in violation of section 3A of the Act. 15. Section 23(1) of the Act reads as under: “23. Cancellation of registration in certain cases. — (1) Notwithstanding anything contained in this Act, the Registrar of Societies may, by order in writing cancel the registration of any society registered under this Act, whose office has ceased to be in the State of Nagaland whose activities are subversive to the objects of the society, or registration had been wrongly obtained and/or granted in violation of the provision of the Act: Provided that the Registrar of Societies shall before passing an order made such inquiry as he considers necessary. Provided further that no order of cancellation of registration of any society on the ground of the activities of the society being subversive to the objects of the society shall be passed until the society is given reasonable opportunity of showing cause against action proposed to be taken in regard to it.” 16. A reading of section 23(1) would indicate that cancellation of the registration of any society registered under the Act can be made in respect of whose office ceased to be in the State of Nagaland, whose activities are subversive to the objects of the Society and that the registration had been wrongly obtained and or granted in violation of the provision of the Act. A consideration of the facts and circumstances of the case in hand, this court is unable to come to the conclusion that the activities of the NRA are subversive to the objects of the NSRA. A consideration of the facts and circumstances of the case in hand, this court is unable to come to the conclusion that the activities of the NRA are subversive to the objects of the NSRA. Further, the registration of the NRA started with the recommendation of the Dimapur District Planning and Development Board and whose recommendation was subsequently forwarded by the Deputy Commissioner, Dimapur by letter dated 6.7.2015. The Dimapur District Development Board had scrutinized all the documents that were placed before them by the petitioners and had only thereafter, recommended the NRA. The Deputy Commissioner, Dimapur thereafter forwarded the recommendation in terms of the requirement of the Act. Thereafter, the respondent No. 2 had proceeded to register the NRA. 17. Black's Law Dictionary (6th edn.) defines ‘Identical’ as under: “Exactly the same for all practical purposes.” On a consideration of the name NSRA and NRA in terms of the definition of ‘Identical’ in Black's Law Dictionary, this court is unable to accept the submissions made by the learned counsel appearing for the respondents that the name of NSRA and NRA are identical. The show cause notice dated 5.7.2016 clearly shows that the complaint made by the NSRA amongst others is that NRA is having a similar name with similar aims and objects with the NSRA. The finding of respondent No. 2 in the order dated 3.8.2016 passed by the respondent No. 2 would also indicate that a conclusion was arrived at that two similar societies with similar aims and objects is not permissible as per the Societies Registration Act. The respondent No. 2, therefore, has wrongly interpreted the terms ‘identical’ and ‘similar’. In that view of the matter, here has been wrong interpretation of the provisions of Act by the respondent No. 2 in the order dated 3.8.2016, 18. It is also important to note that there is no provision under the Act that no two societies can have similar aims and objects. Here too, the respondent No. 2 has come to the wrong finding that no two similar societies with similar aims and objects are permissible as per the Societies Registration Act. 19. On a perusal of the materials available on records, this court is unable to come to the finding that the activities of the NRA is subversive to the objects of the NSRA. 19. On a perusal of the materials available on records, this court is unable to come to the finding that the activities of the NRA is subversive to the objects of the NSRA. Having come to the finding that none of the grounds that have been projected in the show cause notice dated 5.7.2016 has been violated by the petitioners, this court is of the considered opinion that the impugned order dated 3.8.2016 issued by the respondent No. 2 requires interference. Accordingly, the same is set aside and quashed. 20. Writ petition is allowed, however, without any order as to costs.