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2018 DIGILAW 1073 (GAU)

ATOWAR RAHMAN v. STATE OF ASSAM

2018-07-20

UJJAL BHUYAN

body2018
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. J. Ahmed, learned counsel for the applicant and Mr. M. Ahmed, learned counsel for the opposite party/writ petitioner. 2. This application has been filed for vacation of the interim order dated 19.03.2018 passed in WP(C) No. 1299/2018 filed by the opposite party. 3. Opposite party was registered as a society under the Societies Registration Act, 1860 for maintaining the weekly markets in its name. In this connection certificate of registration was issued to the opposite party on 06.11.2017 by the Registrar of Firms & Societies, Assam. 4. Applicant lodged complaint before the Registrar of Firms & Societies, Assam (Registrar) alleging that the registration was obtained by the opposite party by misrepresentation. A hearing was held where after order dated 24.01.2018 was passed by the Registrar cancelling the certificate of registration issued in favour of the opposite party. This led to filing of the related writ petition being WP(C) No. 1299/2018. 5. This Court by order dated 19.03.2018 had issued notice while staying the impugned order of cancellation. 6. It is for vacation of this order that the present interlocutory application has been filed. Heard learned counsel for the parties. 7. On a perusal of the order dated 19.03.2018, it is seen that while passing the stay order, an earlier decision of this Court in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha v. State of Assam, reported in (2006) 1 GLR 395 was considered. On going through the said decision, it is seen that it was a case where certificate of registration was withdrawn by the Registrar which was interfered with by a Single Bench of this Court on two grounds. The first ground was that before withdrawing the registration no opportunity of showing cause was given to the petitioner. The second ground, which is relevant for the present case, was that the Societies Registration Act, 1860 does not contain any provision for cancellation of registration certificate. Learned Single Judge observed that while some states had brought in amendments in the said Act to provide for cancellation of registration, State of Assam has not done so. Therefore, it was held that cancellation of registration by the Registrar was beyond jurisdiction since there is no such provision in the Act. 8. Learned Single Judge observed that while some states had brought in amendments in the said Act to provide for cancellation of registration, State of Assam has not done so. Therefore, it was held that cancellation of registration by the Registrar was beyond jurisdiction since there is no such provision in the Act. 8. A careful perusal of the provisions of the Societies Registration Act, 1860 would go to show that Section 3 thereof vests the power of registration of a society on the Registrar. But there is no such provision in the Societies Registration Act, 1860 for cancellation of registration of a society once registered under the said Act. Relevant portion of the judgment in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra) reads as under:- "12. What is also important to note is that the Societies Registration Act, 1860, which embodies the provisions for registration of societies, is the enactment under which registration of the said Society took place. This Act does not contain any provision for cancellation of registration certificate. It may, however, be pointed out that some States have, in fact, made specific provisions for cancellation of registration of a society formed, constituted or registered under the Societies Registration Act, 1860. 13. In Assam, the State Government has not admittedly, made any provision with regard to cancellation and/or withdrawal of the registration of a society registered under the said Act. In the face of these facts there can be no escape from the conclusion that the act of the Registrar in passing the impugned order, dated 27.09.2004, is ex facie beyond his jurisdiction and cannot be sustained." 9. While it is true that there is no specific provision under the Societies Registration Act, 1860 empowering the Registrar to cancel registration of a society after such registration, sections 14, 16 and 21 of the General Clauses Act, 1897 may be looked into. As per Section 14, where any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion requires. 10. Section 16 on the other hand says that power to appoint includes power to suspend or dismiss. The authority having the power to make appointment shall also have the power to suspend or dismiss any person so appointed in exercise of that power. 11. 10. Section 16 on the other hand says that power to appoint includes power to suspend or dismiss. The authority having the power to make appointment shall also have the power to suspend or dismiss any person so appointed in exercise of that power. 11. On the other hand, as per Section 21, power to issue, would include power to add, amend, vary or rescind notifications, orders, rules or by laws. In Shree Sidhbali Steels Ltd. v. State of Uttar Pradesh reported in (2011) 3 SCC 193 , Supreme Court considered the scope and ambit of sections 14 and 21 of the General Clauses Act, 1897. Supreme Court held that Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. Section 21 embodies a rule of construction. An administrative decision is revocable. The principle laid down in Section 21 is of general application. The power to rescind is inherent in the power to issue which is without any limitation or condition. 12. Therefore, to my mind, even though there is no specific provision in the Societies Registration Act, 1860 empowering the Registrar to cancel a registration once granted, by application of the provisions contained in sections 14, 16 and 21 of the General Clauses Act, 1897, such a power is deducible. Rather it is implicit in the Registrar and has to be acknowledged, otherwise it will lead to a situation where registration of a society once obtained would be immune from interference by the registering authority under any circumstances, which cannot be the purport and object of any legislation. 13. Considering the above, most respectfully I am of the opinion that the view taken in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra) may not reflect the correct position in law and requires a relook. Therefore, the following two questions of law may require a decision by a larger Bench:- (1) Whether registration of a society by the Registrar of Firms & Societies, Assam under section 3 of the Societies Registration Act, 1860 cannot be cancelled once registered? (2) Whether the decision rendered in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra) to the above effect lays down the correct position in law? 14. Registry to place this matter before Hon'ble the Chief Justice on the administrative side for doing the needful.