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The Societies Registration Act, 1860
Section 16 in The Societies Registration Act, 1860
The Code Of Civil Procedure (Amendment) Act, 1956
The Land Acquisition Act, 1894
Article 227 in The Constitution Of India 1949

Madras High Court
Crp.No.2140 Of 2010 : vs The Registrar Of Societies (In ... on 6 June, 2012

Dated : 06-06-2012

Coram :

The Honourable Mr.Justice V.RAMASUBRAMANIAN

CRP (NPD) NOS.2140 AND 2286 OF 2010 & W.P.Nos.

16929 OF 2008 AND 5244 AND 15094 OF 2011 & CONNECTED MPS.

CRP.NO.2140 OF 2010 :

Vallivalam Desikar Polytechnic Educational

Society Nagapattinam (Reg.No.49/69) rep.

by its Chairman, Governing Council M.Ezhilarasi ...Petitioner

Vs

1.The Registrar of Societies (In Charge)

Nagapattinam.

2.The Inspector General of Registration, Chennai-28.

3.A.Mannazhagan

(R-3 impleaded as per order of Court dated

6.6.2012 in M.P.No.2 of 2010) ...Respondents

CRP.NO.2286 OF 2010 :

A.Mannazhagan ...Petitioner

Vs

1.The Inspector General of Registration, Chennai-28.

2.Ezhilarasi

(cause title accepted and R2 brought on record as party respondent vide order of

court dated 8.7.2010 made in M.P.Nos.1 and 2 of 2010)

3.A.Appasamy

(R-3 impleaded as per order of Court dated

6.6.2012 in M.P.No.2 of 2010) ...Respondents

WP.No.16929 of 2008 :

Vallivalam Desikar Polytechnic Educational

Society, Nagapattinam (Reg.No.49/69)

rep.by its Chairman, Governing Council

M.Ezhilarasi ...Petitioner

Vs

1.National Council for Teacher Education,

by its Director, Southern Regional Committee, Bangalore-31.

2.The Government of Tamilnadu, by its Secretary

to Education, Fort.St.George, Chennai.

3.The Director of Teacher Education, Research &

Training, Nungambakkam, Chennai.

4.Vallivalam Desikar Polytechnic College, Educational

and Cultural Trust, Nagapattinam bearing Reg.No.

134/07 rep.by Chairman A.Manaazhagan

5.Mr.A.Manaazhagan, Interim Administrator

Vallivalam Desikar Polytechnic College

Vallivalam, Nagapattinam.

6.Vallivalam Desikar Institute of Teacher Training

by Principal, South Palpanichery, Nagapattinam. ...Respondents

W.P.No.5244 of 2011 :

A.Manaazhagan ...Petitioner

Vs

1.The Commissioner of Technical Education

Guindy, Chennai-25.

2.The Superintendent of Police, Nagapattinam

District, Nagapattinam.

3.The Governing Council, Valivalam Desikar

Polytechnic Educational Society, rep.by its

Chairperson, Nagapattinam-1.

4.V.Danabalan

(R4 impleaded as per order dated 15.7.2011 vide MP.No.6of 2011)

5.A.Appasamy

6.A.Rajarethinam

(R-5 and R-6 impleaded as per order of Court

dated 6.6.2012 in M.P.Nos.4&5 of 2011) ...Respondents

W.P.No.15094 of 2011 :

Vallivalam Desikar Polytechnic Educational

Society, Nagapattinam (Reg.No.49/69)

rep.by its Chairman, Governing Council

M.Ezhilarasi ...Petitioner

Vs

1.The Inspector General of Registration, Chennai-28.

2.The District Registrar, Nagapattinam. ...Respondents

PETITIONS under Article 227 of The Constitution of India (i) against the order dated 21.6.2010 in No.49721/I-1/2007 on the file of the Inspector General of Registration, Chennai in so far as observing that the present Chairman Tmt.Ezhilarasi is not competent person and has no locus standi (CRP.No.2140 of 2010) and (ii) to set aside the order dated 21.6.2010 made in PRO.No.49721/I-1/2007 on the file of the Inspector General of Registration, Chennai (CRP.No.2286 of 2010).

PETITIONS under Article 226 of The Constitution of India seeking (i) to issue a Writ of Declaration to declare the approval granted by the first respondent in FSRO/ NCTE/D.TED/2006/2007/17413 dated 29.1.2008 and the affiliation of the second respondent in RC.6810/1/C2/2008(1) dated 18.6.2008 as published in tamil daily dated 2.7.2008 as illegal and void (W.P.No.16929 of 2008); (ii) to issue a Writ of Certiorari to call for the records of the first respondent culminating in the order dated 22.2.2011 made in proceedings No.45131/C.3/2008 and quash the same (W.P.No. 5244 of 2011); and (iii) to issue a Writ of Certiorari to call for the records of the first respondent dated 16.6.2011 in Rc.28464/11/2011 and quash the same.

For Petitioner

in CRP No.2140/10 : Mr.R.Subramanian

in CRP No.2286/10 : Mr.T.V.Ramanujun, SC

For Mr.Pandi Thennavan

in W.P.No.16929/08 : Mr.K.Magesh

in W.P.No.5244/11 : Mr.M.Sureshkumar

For Mr.Pandi Thennavan

in W.P.No.15094/11 : Mr.S.Sounthar

For R1 & R2 in CRP No.2140/10

& R1 in CRP No.2286/10 : Mr.M.Venugopal, Spl.G.P.(CS)

For R2 & R3 in WP No.16929/08,

R1 & R2 in WP No.5244/11 &

R1 & R2 in WP No.15094/11 : Mr.M.L.Mahendran, G.A.

For R2 in CRP No.2286/10 : Mr.G.RM.Palaniappan

For R1 in W.P.No.16929/08 : Mr.N.Ramakrishna Reddy

For R5 in W.P.No.16929/08 : Mrs.G.Thilakavathy

For R3 in W.P.No.5244/11 : Mr.N.A.Nissar Ahmed

For R4 in W.P.No.5244/11 : Mr.V.Raghavachari

For R5 in W.P.No.5244/11 : Mrs.Hema Sampath

For Ms.R.Meenal

For R6 in W.P.No.5244/11 : Mr.Elephant G.Rajendran

For Mr.R.Neilrashan

COMMON ORDER

One Mr.K.Manaithurainatha Desikar (a) K.M.Desikar, who was a landlord hailing from the village of Valivalam in Nagapattinam Taluk and who was also a Member of the Legislative Council, established a polytechnic with the sanction of the Government of India, Ministry of Education and Scientific Research under the name and style of Valivalam Desikar Polytechnic at Thanjavur, in the year 1958. Later, the polytechnic was shifted to Nagapattinam with effect from the academic year 1959-1960. With a view to meet the expenses for running the polytechnic, the said Mr.K.M.Desikar created a trust under the name and style of Valivalam Desikar Education Trust and donated a vast extent of land measuring about 150 acres, worth in those days about Rs.1,12,500/- on 1.3.1958. Subsequently, he executed a deed of declaration of trust, on 7.1.1959 and the same was registered as Doc.No.696 of 1959 in the office of the Sub-Registrar, Nagapattinam.

2. Under G.O.Ms.No.1282 Education Department dated 26.7.1967, the Madras Technical Education Department issued a grant-in-aid code. Chapter II of the said code prescribed certain conditions for the grant of aid to an educational institution.

3. To bring the polytechnic in tune with the grant-in-aid code so that the institution could receive aid from the Government, Mr.K.M.Desikar and six other persons joined together and formed a society by name Valivalam Desikar Polytechnic Educational Society and got the same registered as a society under the Societies Registration Act, 1860 bearing Reg.No.49/69. The management and administration of the polytechnic were vested with the Governing Council of the said society under the by-laws of the society.

4. In 1984, K.M.Desikar nominated his son-in-law - Appasamy Pillai as the Chairman of the Governing Council and the same was approved by the Department of Technical Education. K.M.Desikar died on 24.6.1984, leaving behind him surviving, only one daughter by name A.Kanagammal, whose husband  Appasamy Pillai was already nominated as the Chairman of the Governing Council. In the year 1997, Appasamy Pillai appointed his son - Manaazhagan as a member of the Governing Council. But, Manaazhagan was removed from the membership of the Governing Council on 27.11.2001.

5. Manaazhagan, S/O Appasamy Pillai filed a suit in O.S.No.81 of 2002 on the file of the District Munsif Court, Nagapattinam challenging his removal from the membership of the Governing Council. Despite his removal and his challenge to the removal, Appasamys wife  Kanagammal nominated her son  Manaazhagan as the Managing Trustee of the Valivalam Desikar Educational Trust in August 2003. Thereafter, taking advantage of the proceedings initiated by the Registrar of Societies under Section 44(2) of the Tamilnadu Societies Registration Act, 1975, against the Valivalam Desikar Polytechnic Educational Society, Manaazhagan, his mother  Kanagammal and a few others joined together and formed a new society by name Valivalam Desikar Polytechnic College Educational and Cultural Trust on 27.1.2004 and got the same registered under the Tamilnadu Societies Registration Act with Regn.No.7/2004. The Director of Technical Education approved the newly formed society and consequently, Manaazhagan allowed the suit in O.S.No.81 of 2002 to be dismissed as not pressed. The Director of Technical Education approved the Governing Council of the new society bearing Regn.No.7/2004 and recognized Manaazhagan as the Chairman of the Governing Council.

6. The order of the Director of Technical Education dated 26.4.2006 approving the appointment of Manaazhagan as the Chairman of the Governing Council of the college, was challenged in a writ petition in W.P.No.15686 of 2006. In the meantime, the District Registrar of Societies also passed an order dated 9.6.2006, holding that the original society bearing Regn.No.49/69 was deemed to be dissolved under Section 44(2) of the Act. This order became the subject matter of another writ petition filed by the original society (No.49/69) in W.P.No.19877 of 2006. Another writ petition in W.P. No.17006 of 2006 for declaring the society registered by Manaazhagan and his mother bearing Regn.No.7/2004 as null and void, was also filed by the original society bearing Registration No.49/69.

7. All the three writ petitions, one challenging the order of the Director of Technical Education, another challenging the registration of the second society and the third challenging the cancellation of registration of the original society were taken up together and disposed of by a learned Judge by a common order dated 29.6.2007. The operative portion of the said order reads as follows : "In view of the above findings, following are my conclusions :

(a) The stand of the District Registrar and Manavazhagan that 'Vallivalam Desigar Polytechnic Educational Society, Nagapattinam' bearing registration No.49/1969 is dissolved by Gazette Notification dated 10.12.2003 is not sustainable, as no Gazette Notification as prescribed under Section 44(4) of the Tamilnadu Societies Registration Act, 1975 was issued. (b) The registration of the 'Vallivalam Desikar Polytechnic College Educational and Cultural Trust, Nagapattinam' under registration No.7/ 2004 is in violation of Section 9 of the Tamilnadu Societies Registration Act, 1975. In view of non-dissolution of the earlier society bearing registration No.49/1969, which has identical name or the name nearly resembles. (c) The order passed by the Director of Technical Education, approving the Chairmanship of Manavazhagan to the Governing Council of 'Vallivalam Desikar Polytechnic College Educational and Cultural Trust, Nagapattinam' on the basis of registration on 27.1.2004 by the District Registrar is unsustainable. (d) Since the issue involved is administration of an aided polytechnic, for the day-to-day administration, the said Manavazhagan is permitted to administer the polytechnic subject to the result of the suit filed by Appasamy, pending as O.S.No.145 of 2004 on the file of the District Munsif Court, Nagapattinam, or till the registration of the new trust according to law, whichever is earlier. (e) It is further made clear that the order passed in these writ petitions will not preclude the District Registrar from taking appropriate further proceeding against the society bearing registration No.49/1969 based on the Gazette Notification dated 10.12.2003 and while taking further action the representations submitted by the said A.Appasamy till 11.9.2003 shall be considered as he was the Chairman of the Governing Council till the said date. (f) It is open to the District Registrar to consider registration of 'Vallivalam Desikar Polytechnic College Educational and Cultural Trust, Nagapattinam' in accordance with law and on such registration, it is open to the Director of Technical Education to pass further orders on merits approving the Governing Council."

8. As against the common order passed in all the three writ petitions, only one writ appeal was filed in W.A.No.997 of 2007 by the original society bearing No.49/69. The challenge in the writ appeal was only to that portion of the common order dated 29.6.2007 of the learned Judge, whereby Manaazhagan was appointed as Interim Administrator. While ordering notice in the writ appeal, the Division Bench granted an interim stay on 30.7.2007 and the same was made absolute on 9.8.2007.

9. In the meantime, the District Registrar of Societies passed an order dated 14.8.2007 under Section 44(4) of the Tamilnadu Societies Registration Act dissolving the society bearing Regn.No.49/69 for non compliance of the statutory provisions. The same was also published in the Nagapattinam District Gazette on 20.8.2007.

10. However in the meantime, Appasamy, who was nominated by the Founder  K.M.Desikar, removed Manaazhagan from the post of Managing Trustee by a proceeding dated 16.8.2007 and the same came to be challenged by Manaazhagan in O.S.No.296 of 2007 on the file of the District Munsif Court, Nagapattinam. During the pendency of the said suit, Manaazhagan floated another society under the same name and style and got it registered on 3.10.2007 with Regn.No.134/2007. At about the same time, the original society with Regn.No.49/69 filed a statutory appeal to the Inspector General of Registration under Section 44(5)(a)(ii) of the Act challenging the order of the District Registrar dissolving the society. While the statutory appeal was pending, the appeal filed by Manaazhagan on the file of the Supreme Court in S.L.P. (Civil) No.15469 of 2007, which got converted into C.A.No.1712 of 2008 challenging the interim stay granted by the Division Bench in W.A.No.997 of 2007 came up for hearing. By an order dated 3.3.2008, the Supreme Court disposed of the civil appeal with a direction to this Court to dispose of W.A.No. 997 of 2007 within four months and further directing Manaazhagan to continue as Interim Administrator till the disposal of the writ appeal.

11. In pursuance of the order passed by the Supreme Court, the Division Bench disposed of W.A.No.997 of 2007, by a judgment dated 23.10.2008 directing the Inspector General of Registration to dispose of the statutory appeal filed by the society bearing Registration No.49/69 within a time frame and also permitting Manaazhagan to continue as Interim Administrator in the meantime.

12. In the meantime, the original society bearing No.49/69 filed W.P.No. 14128 of 2008 seeking a declaration that the registration of the third society bearing No.134/ 2007 was illegal and null and void. It was allowed by a learned Judge and the same was also confirmed by the Division Bench in W.A.No.1505 of 2008 by a judgment dated 21.4.2010. The third society bearing Registration No.134/2007, filed S.L.P.(Civil) No.21015 of 2010 against these orders and the Supreme Court ordered notice in the Special Leave Petition on 21.6.2010. Though interim order was granted, the issue is pending in the Apex Court.

13. Another special leave petition in S.L.P.No.27138 of 2008 was also filed as against the judgment dated 23.10.2008 passed by the Division Bench in W.A. No.997 of 2007. The Supreme Court granted leave and directed the Inspector General of Registration to expedite the disposal of the statutory appeal. Accordingly, the Inspector General of Registration passed an order on 21.6.2010 disposing of the statutory appeal. The effect of the order of the Inspector General of Registration was that the registration of the original society No.49/69 was to be restored. But, the Inspector General of Registration also held that the persons, who filed the statutory appeal as against the order of the District Registrar had no locus standi to maintain the appeal, as they were not the members of the society bearing Registration No.49/69.

14. Therefore, challenging the order of the Inspector General of Registration, restoring the registration of the original society No.49/69, Manaazhagan has filed one civil revision petition in C.R.P.(NPD) No.2286 of 2010. Similarly, another civil revision petition in C.R.P.(NPD) No.2140 of 2010 has been filed by the original society No.49/ 69, challenging that portion of the order of the Inspector General of Registration whereby the locus standi of the persons, who filed the statutory appeal was questioned by the Inspector General of Registration. These two revisions filed by the rival groups are now before me.

15. Immediately after the restoration of the registration of the original society No.49/69, a new set of office bearers were elected on 3.7.2010 and Form-7 was filed with the Registrar of Societies. The Director of Technical Education also approved the newly constituted Governing Council of the original society No.49/69 by an order dated 22.2.2011. Therefore, Manaazhagan filed two writ petitions, one in W.P.No. 5244 of 2011 challenging the order of the Director of Technical Education dated 22.2.2011 and another in W.P.No.8886 of 2011, challenging Form-7 filed by the society No.49/69. In W.P.No.5244 of 2011, notice was ordered on 2.3.2011 and an interim order to maintain status quo was also granted.

16. Subsequently, the Inspector General of Registration passed an order on 16.6.2011 holding that the District Registrar ought not to have received and filed Form-7. In view of this order, the second writ petition in W.P.No.8886 of 2011 filed by Manaazhagan became infructuous and hence, it was withdrawn. But, the order of the Inspector General of Registration holding that the District Registrar ought not to have received Form-7 from the society No.49/69, became the subject matter of challenge in W.P.No.15094 of 2011, filed by the original society. Therefore, these two writ petitions W.P.Nos.5244 and 15094 of 2011, challenging the proceedings of the Director of Technical Education and the proceedings of the Inspector General of Registration were also tagged along with two civil revision petitions.

17. Thus, there are two civil revision petitions and two writ petitions. While one civil revision petition and one writ petition are filed by one group, the other civil revision petition and the other writ petition are filed by the opposite group. While one group is headed by Appasamy and his daughter Ezhilarasi, the other group is headed by Appasamys wife  Kanagammal and their son Manaazhagan. In other words, the battle on hand is between the father and daughter on the one side and the mother and son on the other side.

18. The father-daughter duo is represented by Mrs.Hema Sampath, learned Senior Counsel, Mr.R.Subramanian, Mr.V.Lakshminarayanan and Mr.N.A. Nissar Ahmed, learned counsel. The mother-son duo is represented by Mr.T.V.Ramanujam, learned Senior Counsel, Mr.M.Sureshkumar and Mr.Pandi Thennavan, learned counsel.

19. Though the narration of facts is too long and the dispute appears to be little complicated on the face of it, the scope of the dispute could be narrowed down, by sifting the unnecessary details. As stated earlier, the polytechnic was established first, in the year 1959, by K.M.Desikar. The trust by name Valivalam Desikar Educational Trust was founded in the year 1959. After the grant-in-aid-code came into existence, a society by name Valivalam Desikar Polytechnic Educational Society was formed in the year 1969. Claiming that the society became defunct, Manaazhagan and few others got a society registered bearing Regn.No.7/2004. The registration of the second society bearing No.7/2004 was set aside by this Court by a common order dated 29.6.2007 passed in a batch of writ petitions, namely, W.P.Nos.17374 of 2005 and 15686, 17006 and 19877 of 2006.

20. Manaazhagan and others, who got a second society registered with No.7/ 2004 did not challenge the order of the learned Single Judge dated 29.6.2007, by which, the registration of the second society was set aside. However, the persons claiming to represent the first society bearing Regn.No.49/69 alone filed an appeal in W.A.No.997 of 2007 against one portion of the common order dated 29.6.2007. Therefore, the order setting aside registration of the second society bearing No. 7/2004 had attained finality at least in so far as Maneazhagan is concerned and the second society bearing No.7/2004 is now no more in existence.

21. Manaazhagan and others registered another society (hereinafter referred to as the third society) with Regn.No.134/2007. The registration of the third society was challenged in W.P.No.14128 of 2008. By an order dated 10.12.2008, the writ petition was allowed and the registration of the third society was set aside. This order was confirmed on appeal by the Division Bench in W.A.No.1505 of 2008, by an order dated 21.4.2010. However, the special leave petition filed by the third society in S.L.P. (Civil) No.21015 of 2010, challenging the order of the learned Single Judge and the Division Bench was admitted by the Supreme Court and the same is now pending. But, there is no interim order.

22. Therefore, it is clear that three societies, one registered under the Societies Registration Act, 1860 and two registered under the Societies Registration Act, 1975 were making claims over the polytechnic. Out of these three societies, the second society bearing Regn.No.7/2004 is admittedly no more in existence in view of the orders of this Court, which have been left unchallenged by the second society. The registration of the third society has also been set aside by this Court and the same is pending adjudication before the Supreme Court without any interim order. Therefore, as on date, the third society bearing No.134/2007 is also not in existence any more. But, if the appeal filed before the Supreme Court in S.L.P.(Civil) No.21015 of 2010 is allowed, the third society may come back to life. But, till then, the third society also cannot be taken to be in existence as on date.

23. Once it is clear that out of the three societies staking a claim to the management and administration of the polytechnic, two are not in existence as on date, the resolution of the dispute on hand would become much easier. This is in view of the fact that the management and administration of an educational institution cannot remain in vacuum. More over, the origin of this institution shows that it was created first as a public charitable trust and later converted as a society, to bring it in conformity with the grant-in-aid-code. Therefore, no public charitable institution can be considered to have been extinguished.

24. Keeping the above fundamental premise in mind, let me now take up the civil revision petitions filed by both the warring groups against the order of the Inspector General of Registration dated 21.6.2010.

C.R.P.No.2140 of 2010

25. The challenge to the order of the Inspector General of Registration dated 21.6.2010 by Manaazhagan is on the basis that the appeal had been filed by persons who had no locus standi. As a matter of fact, the Inspector General of Registration had held in his order dated 21.6.2010 that the persons, who filed the appeal had no locus standi to file the appeal against the order dissolving the society. Therefore, it is the contention of Manaazhagan in his revision C.R.P.No.2286 of 2010 that when the appellants had no locus standi to file an appeal, the Inspector General of Registration could not have allowed the appeal restoring the society bearing No.49/69.

26. Since there is an arguable point in the contention of Manaazhagan that the registration of a society cannot be restored at the instance of a person, who had no locus standi to seek the same, the other group claiming to represent the society bearing No.49/69 has come up with an independent revision in C.R.P.No.2140 of 2010 challenging only the finding of the Inspector General of Registration dated 21.6.2010 that there was no locus standi for them. Therefore, what falls for consideration in both these revisions arising out of the order of the Inspector General of Registration, are (i) the correctnes of the finding regarding locus standi; and (ii) the correctness of the conclusion.

27. The question of locus standi of Ezhilarasi, D/o.Appasamy to file an appeal for the restoration of registration of the society bearing Regn.No.49/69 and the question as to the correctness of restoration of the registration of the society, cannot be considered without a careful analysis to the provisions of the Tamilnadu Societies Registration Act and the Rules framed thereunder. Therefore, let us now have a brief outline of the provisions of the Act and the Rules.

28. The Tamilnadu Societies Registration Act 1975 makes registration of certain socieities optional and the registration of certain societies compulsory. A society, which does not consist of at least 7 persons cannot be registered at all under the Act, in view of Sub-Section (2) of Section 3. A society, which consists of not less than 20 members or whose annual gross income or expenditure in any financial year is not less than Rs.10,000/-, is registerable compulsorily. Therefore, as a corollary, a society, which has at least 7 members but less than 20 members and a society, whose annual gross income or expenditure is less than Rs.10,000/- may be registered at the option of the persons constituting the society.

29. By virtue of Sub-Section (2) of Section 4, a society, which has not been registered under the 1860 Act, but which satisfies the requirement of compulsory registration under the Tamilnadu Act, shall be compulsorily registered.

30. Under Section 53 of the Tamilnadu Act, every society registered under the Central Act of 1860 is deemed to be registered under the Tamilnadu Act. Section 53 also states that the by-laws of such society shall, in so far as they are not inconsistent with any provisions of the Act, continue in force until altered or rescinded. Interestingly, Section 53 does not state that the by-laws of the society registered under the Central Act cannot be enforced, if they are inconsistent with the provisions of the Tamilnadu Act. But, it declares that those provisions, which are not inconsistent will continue to remain, indicating thereby that the inconsistent provisions will not be treated as valid.

31. The Tamilnadu Act speaks of four different methods by which, a society registered under the Act can cease to exist. They are (i) cancellation of registration either under Section 37 or under Section 38, by the Registrar, if upon enquiry, it is found that the society contravened any provisions of the Act or it had become insolvent or the business of such society was conducted fraudulently or it appears that the society was carrying on any unlawful activity; (ii) winding up of the registered society under Section 40, consequent upon the cancellation of registration under Section 37 or 38; (iii) dissolution of the society in terms of Section 41, by a special resolution passed by the General Body; and (iv) removal of the name of a registered society from the Register of societies in terms of Section 44.

32. Though the Act speaks of (i) cancellation of registration, (ii) winding up, (iii) dissolution and (iv) removal of defunct societies from the Register, the consequences of each one of them appear to be different and distinct. The consequence of cancellation of registration under Section 37 or 38 is spelt out in Section 39. It says that upon cancellation of registration, the registered society shall cease to carry on its business, except for the purpose of winding up and dissolution. In other words, cancellation of registration should eventually lead to the winding up and dissolution of the society. Till the affairs of the society are wound up and the society is dissolved, the society continues to be in existence, even if its registration is cancelled. This is why Section 39, which speaks of the effect of cancellation of registration requires a special resolution to be passed for winding up and dissolution, after the cancellation of registration. This is also why Section 40(1) empowers the Registrar to appoint a Liquidator to wind up the society, if, after the cancellation of registration, it does not take steps to pass a special resolution for winding up and dissolution.

33. To put it differently, winding up and dissolution should follow as a consequence of cancellation of registration. Winding up and dissolution may happen through a positive act done by the society itself by passing a special resolution or by the Registrar appointing a Liquidator if the Society fails to pass a resolution. Even without the registration of a society being cancelled, a society may get dissolved by a special resolution passed in terms of Section 41. If upon such dissolution, there remains any property, the same should be given to some other society, but shall not be distributed among the members of the society. However, this provision contained in Section 42 of the Act is not applicable to a society, which was formed or established with the contributions of the shareholders in the nature of a joint stock company.

34. A reading of the provisions of Sections 37 to 42 or even 43 indicates that the cancellation of registration, winding up and dissolution fall in the same line. While cancellation of registration could be the cause for winding up, dissolution would be its consequence. Therefore, let us now see what happens when the name of a society is removed from the Register under Section 44. Section 44 reads as follows : "Removal of defunct registered societies : (1) Where the Registrar has reasonable cause to believe that a registered society is not carrying on business or in operation, he shall send to the registered society by registered post a letter enquiring whether the society is carrying on business or in operation. (2) If the Registrar either receives an answer from the registered society to the effect that it is not carrying on business or in operation, or does not within such period as may be prescribed after sending the letter receive any answer, he may publish in the Tamilnadu Government Gazette, and send to the registered society by registered post, a notice that, at the expiration of such period as may be prescribed from the date of such publication, the name of the registered society mentioned therein will, unless cause is shown to the contrary, be struck off the Register and the registered society will be dissolved. (3) If, in any case where a registered society -

(a) is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting or that the affairs of the registered society have been completely wound up; or

(b) has not, for three consecutive financial years, filed with the Registrar all or any of the documents referred to in clause (b) of Sub-Section (3) of Section 16,

the Registrar may publish in the Tamilnadu Government Gazette, and send to the registered society by registered post, a like notice as is provided in Sub-Section (2) of this section.

(4) At the expiration of the time mentioned in the notice referrred to in Sub-Section (2), or Sub-Section (3), the Registrar may, unless cause to the contrary is previously shown by the registered society, strike its name off the Register and shall publish notice thereof in the Tamilnadu Government Gazette, and, on the publication of such notice, the registered society shall be deemed to be dissolved : Provided that the liability, if any, of every officer and member of the registered society shall continue and may be enforced as if the registered society had not been dissolved.

(5) (a) if a registered society or any member or creditor thereof feels aggrieved by the name of the registered society having been struck off the Register, such registered society, member or creditor may, within such period as may be prescribed from the date of the publication in the Tamilnadu Government Gazette of the notice of striking off the name of the registered society, appeal - (i) where the name of the registered society is struck off by the Inspector General of Registration, to the Government;

(ii) in any other case, to the Inspector General of Registration.

(b) The Government or the Inspector General of Registration on being satisfied that the registered society was, at the time its name was struck off, carrying on business or in operation or otherwise that it is just and equitable that the name of the registered society be restored to the Register, may order such restoration. (6) If a registered society or any member or creditor thereof feels aggrieved by the order of the Government or the Inspector General of Registration under Sub-Section (5), the Court may, on the application of such registered society, member or creditor, made within such period as may be prescribed from the date of the receipt by such registered society, member or creditor, of such order, and on being satisfied that it is just and equitable that the name of the registered society be restored to the Registrar, order such restoration. (7) The registered society whose name is restored to the Register under Sub-Section (5) or Sub-Section (6) shall be deemed to have continued in existence as if its name had not been struck off; and the Government or the Inspector General of Registration or the court, as the case may be, may, by order, give such directions and make such provisions as seem just for placing the registered society and all other persons in the same position, as nearly as may be, as if the name of the registered society had not been struck off. (8) If the name of the registered society having been struck off the Register, has not been restored or if the period allowed for appeal has lapsed or no appeal has been made or an appeal has been made but dismissed, under this Act, the registered society shall not function and the provisions of Section 39 shall apply as if the registration of such society has been cancelled."

35. A reading of Section 44 shows that it indicates (i) the grounds on which the name of a registered society may be struck off the Register; (ii) the procedure to be followed by the Registrar for doing so; (iii) the persons, who are entitled to file an appeal against such removal; (iv) the power of the Registrar, the Government and the Court to order restroration of such society; and (v) the consequences of such restoration or the removal once and for all.

36. The grounds prescribed by Section 44, for striking the name of a registered society, off the Register are as follows :

(i) where a society is not carrying on business or in operation;

(ii) where the Registrar has reasonable cause to believe that the affairs of the society had been completely wound up;

(iii) where the society has not for three consecutive financial years filed with the Registar, all or any of the documents referred to in Section 16(3)(b) of the Act.

37. The procedure for removal of defunct societies, prescribed under Section 44 is as follows :

(i) If the Registrar has reason to believe that a society is not carrying on business or in operation, he must send a registered letter to the society enquiring whether it is carrying on business or in operation. If the society gives a reply confirming that it is not carrying on business or in operation or if the society fails to send a reply, the Registrar may publish a notice in the Tamilnadu Government Gazette, holding out that if the society fails to show sufficient cause within the time prescribed in the publication, its name would be struck off the Register. Apart from making the publication of such a notice in the Tamilnadu Government Gazette, the Registrar should also send a registered notice to the society calling upon them to show cause against the proposal. (ii) If the Registrar has reason to believe that the affairs of the society have been completely wound up, or that the society has not filed, for three consecutive financial years, the documents stipulated in Section 16(3)(b), the Registrar may publish a notice in the Tamilnadu Government Gazette and also send a registered notice to the society, calling upon them to show cause as to why its name should not be removed from the Register. (iii) If no reply is received or if the society is unable to show sufficient cause against the notice sent by registered post or published in the Government Gazette, the Registrar may strike its name off the Register.

38. It may be noticed that there is a small difference in the procedure to be followed between a case where Section 44(1) is invoked and a case where Section 44(3) is invoked. In cases where Section 44(1) is to be invoked, a letter should be first addressed by the Registrar to the society enquiring the society as to whether it is carrying on business or in operation. The publication of a notice in the Government Gazette is only the next step in the procedure to be followed. But, in a case falling under Section 44(3), the publication in the Tamilnadu Government Gazette is not preceded by any letter. However, in respect of both these types of cases, the procedure to be followed after the publication of the notice in the Government Gazette is the same.

39. As stated earlier, Section 44 deals with 5 different matters, namely, (i) the circumstances under which the name of a society could be struck off the Register; (ii) the procedure to be followed; (iii) the persons entitled to file an appeal; (iv) restoration; and (v) the consequences of the removal of the societies from the Register. Out of these five matters, we have discussed two in the earlier paragraphs. Now, let us turn to the provision for appeal contained in Section 44 itself, as one of the issues raised in the revisions is as to the entitlement of Ezhilarasi to file an appeal against the order of the Registrar to the Inspector General of Registration. Sub-Section (5) of Section 44 entitles three persons to file an appeal against the order striking the name of a registered society off the Register. They are (i) the registered society itself; (ii) any member; and (iii) a creditor.

40. A careful reading of Sub-Section (5) shows that the appeal itself is against the order striking off the name of the society from the Register. Yet, Sub-Section (5) entitles the society also to file an appeal despite its having already become defunct. In other words, a non existent society in the eye of law, would be recognised as existent, to enable the society to file an appeal. This is because of the fact that under Sub-Section (7), the society will be deemed to have continued in existence, as if its name had never been struck off, if its name is later restored. Therefore, it is clear that the doctrine of relationback is recognised by Sub-Section (7).

41. But, if the name of the society is not restored, the society shall cease to function and an order of winding up and dissolution in terms of Section 39 should follow. This is the mandate of Sub-Section (8) of Section 44.

42. Apart from the provision contained in Sub-Section (5) of Section 44, for filing an appeal against the order striking the name of a society off the Register, there is also one more provision relating to appeals. That is contained in Section 45, which reads as follows : "Appeals :- (1) Any person aggrieved by an order -

(a) refusing to register a society or any amendment of the memorandum or bye-laws of a society; or

(b) cancelling the registration of a registered society; or

(c) made under Sub-Section (4) of Section 36 - may nappeal, if such order is that of -

(i) the Inspector General of Registration, to the Government; or

(ii) any other person, to the Inspector General of Registration.

(2) Any person aggrieved by any order made by a Liquidator may appeal to the Court.

(3) Save as expressly provided in this Act, orders made under this Act shall be final and conclusive.

Explanation :- For the purposes of Sub-Sections (1) and (2), 'person aggrieved' includes a registered society."

43. A reading of Section 45(1) shows that an appeal thereunder could be against any of the following four types of orders :

(i) an order refusing to register a society;

(ii) an order refusing to register any amendment of the memorandum of by-laws;

(iii) an order cancelling the registration of a registered society;

(iv) an order passed under Section 36(4) of the Act, in pursuance of an inquiry into the constitution, working and financial condition of the society.

Section 45(2) provides for an appeal as against an order passed by a Liquidator in the course of winding up of a registered society. This is the fifth type of appeal that Section 45 speaks of. The Explanation under Section 45 makes it clear that for the purpose of Sub-Sections (1) and (2), 'person aggrieved' would include a registered society.

44. A comparison of Section 44(5) with Section 45(1) would show that the right of appeal under Section 44(5) is confined to a registered society, any member or creditor. But, the right of appeal under Section 45(1) is for 'any person aggrieved'. Therefore, any person aggrieved by the cancellation of registration of a society may file an appeal under Section 45(1)(b). But, as against the order striking off the name of a society from the Register, any and every person cannot file an appeal.

45. However, as I have pointed out earlier, the removal of the name of a registered society from the Register, is only the first step in the process of dissolution of the society. This is seen from Sub-Sections (4) and (8) of Section 44. While Sub-Section (4) introduces a deeming fiction to the effect that upon publication in the Tamilnadu Government Gazette of the factum of the striking off, of the name of society from the Register, the society shall be deemed to be dissolved. Sub-Section (8) introduces another deeming fiction that upon the name of the society being struck off the Register, the provisions of Section 39 will apply as if the registration had been cancelled.

46. Therefore, the net effect of the deeming fictions introduced under Sub-Sections (4) and (8) of Section 44 is that the right conferred under Section 45(1)(b) upon 'any person' would be available even in respect of an order under Section 44(4). To put it in simple terms, though the right of appeal under Section 44(5)(a) appears to be restricted to three types of persons, it is practically not so in view of the deeming fictions introduced under Sub-Sections (4) and (8) of Section 44, which when come into play, would make Section 45(1)(b) operational. To put it simple terms, once the deeming fictions under Sub-Sections (4) and (8) of Section 44 come into play and the society is deemed to be dissolved as well as its registration deemed to be cancelled, the right to file an appeal gets crystallized under Section 45(1)(b) on "any person aggrieved by the order". Therefore, even if a person does not fall under any of the three categories enumerated in Section 44(5)(a), he would become entitled to file an appeal under Section 45(1)(b) as "a person aggrieved". To say that the right of appeal is restricted only to three categories of persons, as against the cause, but it is not so restricted as against the consequence, may not be a correct and proper interpretation. Therefore, I am of the view that the locus standi of Ezhilarasi to file an appeal under Section 44(5)(a)(ii) cannot be questioned.

47. The only distinction that could perhaps be maintained between an appeal under Section 44(5)(a) and an appeal under Section 45(1) of the Act, could be traced to the rules. Under Rule 37(3) of the Tamilnadu Societies Registration Rules, 1978, issued by the Government in exercise of the power conferred by Section 56 of the Act, the time limit for filing an appeal under Section 44(5) is one year from the date of publication of notice under Section 44(4). But, under Rule 38, the time limit for filing an appeal under Section 45, is two months from the date of the order against which the appeal is made. Except making this small distinction between the above two appeals, the rules treat both these types of appeals as identical in all other aspects. This is seen from the fact that Rule 39 prescribes a uniform procedure for filing appeals both under Section 44(5) and under Section 45(1). Rule 40 prescribes a uniform procedure for the disposal of both these types of appeals. Therefore, it is clear from a combined reading of Sections 39, 44(4), 44(5), 44(8) and 45 as well as Rules 37 to 40 that any person aggrieved by an order passed under Section 44(4) striking the name of the society, off the Register, would be entitled to file an appeal.

48. There is no scope, in the scheme of the Act, to restrict the meaning of the expression "any person aggrieved" appearing in Section 45(1), to the three categories of persons mentioned in Section 44(5)(a). On the other hand, there is definitely a positive indication that the right of appeal under Section 44(5)(a) is not actually restricted to the three categories of persons mentioned therein. Therefore, I am of the view that the conclusion reached in the order of the Inspector General of Registration impugned in C.R.P.No.2140 of 2010 that Ezhilarasi did not have locus standi to file an appeal, cannot be sustained.

49. The Inspector General of Registration, by his order dated 21.6.2010, held that Ezhilarasi did not have locus standi to file an appeal, for two reasons, namely (a) that she was admitted as a member only on 6.7.2007, much after the society was declared as defunct by the District Registrar under Section 44(2) and (b) that she was neither a member nor a creditor of the society, in terms of Section 44(5)(a) so as to be able to file an appeal.

50. But both the above reasons are unsustainable. I have already pointed out in the preceding paragraphs about the two types of appeals, one provided under Section 44(5)(a) and another provided under 45(1). The Inspector General of Registration pointed out in his order that the society had already become defunct with the publication of a Gazette Notification under Section 44(2) on 10.12.2003 followed by the publication of the Notification under Section 44(4) on 5.7.2007. Therefore, by virtue of Sub-Section (4) of Section 44, the society was deemed to be dissolved with effect from 5.7.2007. Consequently, its registration is deemed to have been cancelled by virtue of Sub-Section (8) of Section 44. Once the registration is cancelled, a right of appeal enures under Section 45(1)(b) to challenge the same. This right enures to the benefit of "any person aggrieved". Even as per the order of the Inspector General of Registration, Ezhilarasi was appointed as the Chairperson of the Governing Council of the polytechnic run by the society. Therefore, she is naturally interested in the restoration of the registration of the managing agency, namely, the society. Consequently, she became a person aggrieved by the order published in the Government Gazette under Section 44(4). Hence, she had locus standi to file the appeal, which she did on 5.10.2007 within a month of the publication in the Government Gazette dated 5.9.2007. Therefore, the reliance placed by the Inspector General of Registration, on the language of Section 44(5)(a), to hold Ezhilarasi as not having locus standi, is not correct.

51. The other reason stated in the impugned order, namely that Ezhilarasi was admitted as a member only on 6.7.2007, after the society became defunct in 2002 itself, is also unsustainable. The notice published under Section 44(2) does not dissolve the society automatically. It is only a warning putting the society on notice that if there was no response to the notice under Section 44(1) within a period stipulated, the name of the society will be struck off the Register and the society will be dissolved. This publication under Section 44(2) should necessarily be followed by the publication under Section 44(4). Section 44(4) makes it clear that it is only after the publication of a notice under Section 44(4) that the society will be deemed to be dissolved. Therefore, until the publication of notice under Section 44(4), there is no impediment for the society to carry on its business, including the admission, expulsion, etc of members. Since Ezhilarasi was admitted as a member much before the publication of the notice under Section 44(4) in the Government Gazette, she was not disqualified from filing an appeal for the restoration of the society. Hence, that portion of the impugned order holding Ezhilarasi to have no locus standi to file an appeal is liable to be set aside. Consequently, the revision in C.R.P.No.2140 of 2010 is liable to be allowed. C.R.P.No.2286 of 2010

52. This revision is filed by Manaazhagan challenging the order of the Inspector General of Registration dated 21.6.2010, reviving and restoring the society bearing Registration No.49/ 1969. In other words, this revision challenges the order of the Inspector General of Registration on merits.

53. A perusal of the order of the Inspector General of Registration shows that after tracing the history of the establishment of the polytechnic, creation of the trust and registration of the society for the purpose of satisfying the grant-in-aid code, the Inspector General of Registration took up for consideration three issues. The first was as to whether the society bearing No.49/69 was functioning at the time of its name being struck off.

54. On facts, the Inspector General of Registration recorded a finding that the society which was registered in the year 1969 had filed returns upto the year 1982-83. The society failed to file the annual returns as per Section 16(3)(b) of the Act read with Rule 22, from 1983-84 onwards. A notice under Section 44(2) was published on 10.12.2003 in the Gazette. Since there was no response, the Registrar passed an order under Section 44(4) on 14.8.2007 and the Gazette Notification under Section 44(4) was made on 5.9.2007. Immediately, Ezhilarasi filed an appeal on 5.10.2007 to the Inspector General of Registration, on behalf of the society with Registration No.49/69 which was declared as defunct and consequently dissolved.

55. After the filing of the appeal, the society filed its annual returns for the years 1983-84 to 2006-07, along with applications for condonation of delay, in terms of Section 54(1) of the Act. It is recorded by the Inspector General of Registration, in his impugned order that the applications for condonation of delay are pending with the Government under Section 54(1). But, this appears to be a mistake. Under Section 49, the Registrar himself has the power to condone the delay, but his power to condone delay under Section 49 is restricted to a period of three months under Rule 48. However, the Government had the power under Section 54(1) to exempt a society even retrospectively, from all or any of the provisions of the Act and the Rules. Under Sub-Section (2) of Section 54, the Government has the power even to direct that any of the provisions would apply with such modifications, to a society.

56. Therefore, taking note of the power of exemption available to the Government and also taking note of the applications pending with the Government in this behalf, the Inspector General of Registration held that the name of the society should be restored. The Inspector General of Registration also took note of the fact, in Chapter III of his order that the society was running a polytechnic for the past more than 50 years and that it was also receiving grant-in-aid from the State Government to the extent of about Rs.2 Crores per year. Therefore, the Inspector General of Registration invoked Section 41(4) of the Act and held that the society cannot be dissolved.

57. Section 41(4) makes it clear that if the Central or State Government is a member of or a contributory to or otherwise interested in, any registered society, such society cannot be dissolved without the consent of the Central or State Government concerned. In so far as the society in dispute is concerned, there can be no doubt that the State Government is "otherwise interested in". This is in view of the grant-in-aid provided by the State Government in the past more than five decades. Therefore, the Inspector General of Registration rightly held that such a society in which the State Government is a contributory or otherwise interested in, cannot be dissolved. Hence, the order of the Inspector General of Registration is a well considered and perfectly vallid order, in tune with the statutory provisions and it does not call for any interference. Consequently, the revision in C.R.P.No.2286 of 2010 is liable to be dismissed. Writ Petitions :

58. W.P.No.5244 of 2011 has been filed by Manaazhagan, challenging the order of the Director of Technical Education dated 22.2.2011 approving the Governing Council constituted by the society bearing No.49/69. But as I have pointed out earlier, the result of this writ petition depended directly upon the result of the above two revision petitions. If the restoration of registration of the society ordered by the Inspector General of Registration is to be set aside in the above revisions, then the Governing Council constituted by such a society whose name had been struck off, cannot have any legal sanction. If the restoration of registration of the society No.49/ 69 is in order, then no exception can be taken to the constitution of the Governing Council by such society especially at the instance of a person who is a stranger to the society.

59. In the previous part of this order, I have already held that the order of the Inspector General of Registration restoring the registration of the society is perfectly valid. Therefore, the Governing Council constituted by the society which now stands restored, cannot be assailed on any legally tenable grounds. This is more so in view of the fact that Manaazhagan who is the petitioner in W.P.No.5244 of 2011 is a stranger to the society bearing No.49/69. He was expelled from the membership of the society on 27.11.2001 and his suit O.S.No.81 of 2002 challenging his removal from the membership was ultimately dismissed as not pressed on 5.3.2004. Apart from the fact that he is an expelled member of the society, he has proved to be a person who acted against the interests of the society No.49/69, by registering another society in the same name and getting it registered as No.7/2004. After the registration of the second society was set aside by this Court, he got a third society registered No.134/2007, whose fate is now lingering in the Apex Court. Therefore, at his instance, the order of the Director of Technical Education approving the Governing Council constituted by the restored society No.49/69, cannot be set aside. Hence, W.P.No.5244 of 2011 is liable to be dismissed.

60. W.P.No.15094 of 2011 is filed by the restored society No.49/69 challenging the communication of the Inspector General of Registration dated 16.6.2011 to the District Registrar asking him not to accept Form VII filed by Ezhilarasi. The said order was passed by the Inspector General of Registration on the ground that Ezhilarasi was already held to be a person having no locus standi to represent the society No.49/69 and that therefore, the statutory forms filed by her cannot be accepted by the District Registrar.

61. But, in C.R.P.No.2140 of 2010, I have held that Ezhilarasi had locus standi to represent the society and to file an appeal. Therefore, as a consequence of my finding in C.R.P.No.2140 of 2010, the only ground on which the Inspector General of Registration issued a communication to the District Registrar, becomes invalid. Hence, the communication dated 16.6.2011 sent by the Inspector General of Registration to the District Registrar is liable to be set aside.

62. Moreover, the Inspector General of Registration has relied upon a decision of the Division Bench of this Court in W.A.No.515 of 2008 dated 31.10.2008 where it was held that the duties performed by the District Registrar, cannot be said to be merely ministerial. But, two Division Benches, one before and the other after 31.10.2008, have taken a contra view.

63. As a matter of fact, many of the trusts as well as societies, running educational institutions and minting crores of rupees, are bogged down by litigation these days. While the warring groups of members of trusts invariably go to Civil Courts under Section 92, CPC, the members and elected officers of many societies take a devious route by holding parallel meetings and electing two or more groups of office bearers. Both sets of people file statutory forms before the Registrar of Societies and pressurise the Registrar to accept one and reject the other, of those statutory forms. Thererafter they invoke the writ jurisdiction of this Court. Consequently, all civil litigations between two or more groups of warring members of every society, land up in the Writ Court, under the pretext that what was challenged was only the order of the District Registrar accepting or rejecting Form VII. Taking note of this ingenious, yet devious method adopted by the societies in the recent past, a Division Bench of this Court, to which I was a party, held in R.Muralidaran Vs. District Registrar, South Madras (2008 (1) M.L.J. 1308), that the acceptance or rejection of Form VII cannot be the subject matter of writ petitions and that all disputes relating to admission and expulsion of members, election of office bearers, etc., should be resolved only in a Civil Court. But, in C.M.S.Evangelical Suvi David Memorial Higher Secondary School Committee Vs. District Registrar {2008 (4) L.W. 1080} another Division Bench trashed the decision in R.Muralidaran as per incuriam. However, in C.Dharmalingam Vs. District Registrar {(2010) 3 CTC 390} a subsequent Division Bench took note of both these decisions and concluded that the views expressed in R.Muralidaran reflect the correct position in law. But the said decision has not been brought to the notice of the Inspector General of Registration, which has resulted in his following the decision dated 31.10.2008.

64. In any case, even without going into the controversy regarding the nature of the role played by the Registrar while accepting or rejecting Form VII, it is seen that the only ground on which the Inspector General of Registration issued the communication dated 16.6.2011 was that Ezhilarasi did not have locus standi. But that finding rendered by the Inspector General of Registration in his order dated 21.6.2010 has been set aside by me in C.R.P.No.2140 of 2010. Therefore, W.P.No.15094 of 2011 is liable to be allowed and the communication dated 16.6.2011 of the Inspector General of Registration is liable to be set aside.

65. W.P.No.16929 of 2008 was filed by Ezhilarasi representing the society No. 49/69 challenging the recognition granted by the National Council for Teacher Education, to the third society bearing No.134/2007 floated by Manaazhagan. Since the registration of the third society has been set aside in W.P.No.14128 of 2008 and the same was also confirmed by the Division Bench in W.A.No.1505 of 2008, nothing survives for adjudication in W.P.No.16929 of 2008. As on date, there is only one society namely 49/69. It is represented by Ezhilarasi. Therefore, W.P.No.16929 of 2008 is closed as having become infructuous in view of the cancellation of registration of the society which obtained the recognition that is under challenge in this writ petition.

66. In the result, C.R.P.No.2140 of 2010 and W.P.No.15094 of 2011 are allowed, C.R.P.No.2286 of 2010 and W.P.No.5244 of 2011 are dismissed and W.P.No.16928 of 2008 is closed. There will be no order as to costs. Consequently, all connected pending miscellaneous petitions are closed.

67. But, it is not possible to decide the lis on hand on the above lines and leave the matter at that, in view of the fact that questions of larger public interest are involved. From the history of the institution traced by me in the first part of this order, it could be seen that late K.M.Desikar first established the polytechnic in the year 1958. It was only thereafter that he executed a deed of trust dated 7.1.1959 and registered the same as Doc.No.696 of 1959. By this deed of trust, he created a public charitable trust known as Valivalam Desikar Educational Trust. The Founder appointed himself as the sole trustee for life. But a society had to be formed in 1969, in order to satisfy the requirements of the grant-in-aid code. This society is plunged into a series of litigation in the past about 10 years. A careful scrutiny of the litigations that had taken place between two groups, reveals the following : (i) that the society which came to be formed in 1969, was only an off-shoot of a public charitable trust and hence, its roots are embedded in public charitable purposes.

(ii) that the entire litigation could be traced to the mindset of the family members of the Founder, who seem to think that the trust, the society, its properties and the educational institutions are their private properties over which they have some rights of inheritance and (iii) that the fight is really between Appasamy (son-in-law of the Founder K.M. Desikar) and his daughter Ezhilarasi on the one hand and Kanagammal (Appasamy's wife) and the son Manaazhagan on the other hand.

68. Apart from the fact that the institution had its orgins in a public charitable trust and apart from the fact that the litigation on hand is nothing but an attempt to treat the institutions and the properties as private properties, there are two things which cannot be ignored by this Court. They are : (i) As noted by the Inspector General of Registration in his order dated 21.6.2010, the Government is paying a total amount of Rs.2 Crores per annum as grant-in-aid to the educational institution run by the society. This is certainly not intended to benefit either the father-daughter duo or the mother-son duo. It is a grant which comes out of the tax payers' money. (ii) Even the land on which the polytechnic had come up, appears to have been acquired by the Government of Tamilnadu, by initiating proceedings under the Land Acquisition Act, 1894, wayback in the year 1960.

69. Therefore, it is clear (i) that the polytechnic is located in the lands acquired by the Government in the year 1960 for a public purpose; (ii) that the rest of the lands form part of a public charitable trust created by K.M.Desikar; and (iii) that the institution is run with the grant-in-aid provided by the Government every year to the tune of about Rs.2 Crores. Hence, I am of the view that the management and administration of the affairs of the institution should be in the hands of public spirited individuals, who can advance the cause for which the public charitable trust was created. This is possible only by having a scheme framed for the administration of the affairs of the institution.

70. There is no difficulty in getting a scheme framed in respect of a trust, by invoking Section 92 of the Code of Civil Procedure. But the institutions engaged in this litigation 2 in number, one of which is a society, registered under the Tamilnadu Societies Registration Act and the other a public charitable trust. Therefore, a question may arise as to whether a scheme could be framed for the administration of the society.

71. A Division Bench of this Court had already considered this issue in Chennai Vazhal Duraiyur Uravinmurai Magamai Sangam vs. K.A.Gurusamy {(2004) 2 LW 117}. Therefore Section 92 can be invoked in this case even though one of the managing agencies is a society and the other a trust, since the objects for which both were established, are public charitable in nature. Therefore, I am of the view that (i) when the Government is paying grant-in-aid to the tune of Rs.2 Crore per year and (ii) when the polytechnic is functioning on lands acquired by the Government 50 years ago for a public purpose, it is but essential that the Government itself takes steps, through the Advocate General to have a scheme framed. It is needless to point out that if two or more persons claiming to have an interest in a trust invoke Section 92, they have to do so after obtaining the leave of the Court. But, the Advocate General is entitled under Section 92(1), to institute a suit for framing a scheme under Section 92(1), even if two or more persons having an interest do not come up before Court. Therefore, even while allowing the civil revision petition and the writ petition filed by the society bearing registration No.49/69 and dismissing the revision and writ petition filed by Manaazhagan, a direction is issued to the learned Advocate General to institute a suit on the file of the competent court under Section 92, CPC, for framing a scheme for the administration of the institutions in question. The learned Advocate General shall institute a suit and file a report of compliance into this Court within three months.

06-06-2012

Index : Yes or No

Internet : Yes or No

Svn

V.RAMASUBRAMANIAN,J

RS/SVN

ORDER IN

CRP.(NPD)NOS.2140 & 2286/2010

& WP.NOS.16929/2008 & 5244 &

15094/2011

06-06-2012