IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2008 CORAM THE HONOURABLE MR.JUSTICE P. JYOTHIMANI W.P. No. 19275 of 2008 & M.P. Nos. 1 & 2 of 2008 T.C. Sankar Raju @ T.C.S. Raju ..Petitioner Vs. 1. The Inspector General of Registration, Santhome High Road, Mylapore, Chennai 600 004. 2. The Registrar of Societies, Chennai-North District, Rajaji Salai, Chennai 600 001. 3. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, Egmore, Chennai 600 008. 4. The Secretary, Young Men's Indian Association, No.66, Armenian Street, Chennai 600 001. ..Respondents Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the 1st and 2nd respondents to conduct an enquiry on petitioner's representations dated 27.10.2003 and 7.7.2008. For Petitioner :: Mr.N. Velayudham For Respondents :: Mr.V. Shanmugam for R4 O R D E R
This writ petition is filed for a direction to respondents 1 and 2 to conduct an enquiry on the representations of the petitioner dated 27.10.2003 and 7.7.2008.
2. A reference to the representation stated to have been made by some of the life members of Young Men’s Indian Association, the 4th respondent herein dated 27.10.2003 followed by reminder dated 7.7.2008 makes it clear that the allegation made by these life members is in respect of the administration of the 4th respondent by its office bearers. In fact, in the above said representation made by the life members, the petitioner being one among them, a request has been made to the Registrar of Societies to conduct an enquiry into the mismanagement and various activities of the office bearers of the 4th respondent.
3. At the most, this can only be construed as a representation to conduct an enquiry under Section 36 of the Tamil Nadu Societies Registration Act, 1975, (hereinafter referred to as the ‘Act’) which reads as hereunder:
“Section 36 Power of Registrar to inquire into affairs of registered society:-(1) The Registrar may, of his own motion or on the application of a majority of the members of the committee of a registered society or on the application of not less than one-third of the members of that registered society, or if so moved by the District Collector hold or direct some person authorised by the Registrar by order in writing in this behalf to hold, an inquiry into the constitution, working and financial condition of that registered society.”
In the face of such provision, to invoke the powers of the Registrar to conduct an enquiry, the application should be made by majority of the members of the committee of a registered society or by one-third of the members of that registered society. It is submitted by the learned counsel for the 4th respondent that the Governing Body of the Association consists of 24 elected members. But, the representation has been made only by 10 life members, which does not constitute a majority. Further, if it is to be construed as an application made by one-third of the ordinary members of the Association, then, as on date, there are 204 members and therefore, one-third of the same would be much more than 10. In such circumstance, there is no legal right on the part of the members to have the representation considered under Section 36 of the Act and consequently, there is no legal obligation on the part of the Registrar of Societies to act on the representation made by 10 life members of the 4th respondent. Therefore, there is no difficulty to come to the conclusion that the representation stated to have been made by some of the life members of the 4th respondent Association cannot be directed to be considered in the absence of any legal right on the part of the members and consequential legal obligation on the Registrar to conduct an enquiry as contemplated under Section 36 of the Act. For the above reason, the writ petition is liable to be dismissed.
4. Though the main writ petition is in respect of the administration of the 4th respondent, the interim application is for staying the demolition and construction of the Heritage Building, Besant Memorial Building (Gokhale Hall) situated at No.66, Armenian Street, Chennai -1 on the ground that it is a heritage building. In effect, the relief sought for is against the 4th respondent not to demolish the structure. The 4th respondent, being a private individual and not a “State’ within the meaning of Article 12 of the Constitution of India, the writ petition cannot be maintained on this ground also.
5. It is pointed out by the learned counsel for the 4th respondent that earlier, one of the life members, namely, one N.T. Arasu had approached this Court for the same relief by filing W.P. No. 16077/2005 and the writ petition came to be dismissed by order dated 5.7.2005 directing the petitioner therein to approach the Civil Court. It is seen that pursuant to the direction given by this Court, the said Arasu had approached the Civil Court and it is stated that the suit filed was also dismissed by the Civil Court in March, 2008. It is the further contention of the learned counsel for the 4th respondent that after the dismissal of the suit in March, 2008, the present writ petition has been filed.
6. Be that as it may, the basic issue involved in the writ petition is whether the said Gokhale Hall is a heritage building or not and the same cannot be decided by exchange of affidavits under Article 226 of the Constitution of India. Since the issue involves complicated questions of fact, it requires appreciation of evidence and that can be done only by the competent Civil Court. In view of the same, giving liberty to the petitioner to approach the Civil Court, the writ petition is dismissed.
7. It is made clear that if the petitioner approaches the Civil Court within a period of 7 days from today, the Civil Court shall take up the matter and pass appropriate orders in the interim applications that may be filed by the petitioner along with the suit. If, within the period of 7 days from today, either the petitioner fails to approach the Civil Court or obtain necessary interim orders in respect of demolition of the building stated above, it will be open to the 4th respondent to proceed further. It is also made clear that in the event of required number of members of the Governing Body of the Association or the ordinary members of the 4th respondent Association making an application under Section 36 of the Act, it is for the Registrar to take appropriate action on such application that may be made. For a period of 7 days from today, status quo, as on date, shall be maintained by the 4th respondent.
8. In this context, it is submitted by the learned counsel for the 4th respondent that 90% of the building has been demolished and the demolition itself is on the basis of the structural stability certificate issued by the Engineer concerned pursuant to which tender has been floated by publication and the 4th respondent has received 45 lakhs from the contractor, who was awarded contract based on the notification issued earlier and therefore, there is financial constraint on the part of the 4th respondent.
9. In the event of such financial crisis, it is always open to the 4th respondent to refund the amount to the contractor in the manner known to law.
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To
1. The Inspector General of Registration,
Santhome High Road, Mylapore,
Chennai 600 004.
2. The Registrar of Societies,
Chennai-North District,
Rajaji Salai, Chennai 600 001.
3. The Member Secretary,
Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Building,
Egmore, Chennai 600 008.
4. The Secretary,
Young Men’s Indian Association,
No.66, Armenian Street,
Chennai 600 001