IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 11619 of 2006(G)
1. B.VINOD, SON OF BALAKRISHNAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY SECRETARY
... Respondent
2. IN INSPECTOR GENERAL OF REGISTRATION,
3. THE DISTRICT REGISTRAR, IDUKKI DISTRICT
4. THE KERALA CRICKET ASSOCIATION HAVING
5. IDUKKI DISTRICT SPORTS COUNCIL, OFFICE
6. SARATH U.NAIR, COMMERCIAL SHOPPING
For Petitioner :SRI.N.RAGHURAJ
For Respondent :SRI.SHAJI P.CHALY
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :05/09/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C). NO. 11619 OF 2006
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Dated this the 5th day of September, 2007
J U D G M E N T
This writ petition is filed by the Hon. Secretary of Idukki
District Cricket Association seeking to quash Ext.P6 order issued by
the 2nd respondent and to declare that Ext.P3 registration certificate
obtained by respondent No.6 is invalid and cannot be acted upon.
2. The Idukki District Cricket Association, of which petitioner
is the Hon. Secretary, was incorporated in the year 1998 and is
affiliated to the Kerala Cricket Association, the 4th respondent. The
6th respondent herein had moved the 3rd respondent, District
Registrar, for incorporating a new association known as Idukki
District Cricket Association. On completion of the formalities
contemplated under Act 12 of 1955, the Idukki District Cricket
Association was incorporated and Ext.P3 is the certificate of
incorporation. Since the name of the new association was same as
that of the Association represented by the petitioner, petitioner
moved a compliant before the 3rd respondent against the
incorporation of the new association.
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3. An enquiry was conducted into the complaint of the
petitioner and finally Ext.P4 order was issued on 25.1.99. In Ext.P4
order it has been found that the petitioner association is functioning
in terms of the provisions of the Statute and under the Byelaws of the
4th respondent and that the incorporation of the new association by
Ext.P3 was erroneous. On this basis, Ext.P3 order of incorporation
was cancelled by the 3rd respondent. Ext.P4 order was challenged
by the Idukki District Cricket Association (the new association) in
O.P. No.7497/99. That Original Petition was disposed of by Ext.P5
judgment dated 4.11.05 with the following directions:
“The petitioner shall submit a representation before the
Inspector General of Registration, Thiruvananthapuram within
a period of two months from today, after serving a copy of the
same on the 3rd respondent as well as the Kerala Cricket
Association. Thereafter the Inspector General of Registration
shall consider the issue with notice to the petitioner, Kerala
Cricket Association and the 3rd respondent. Appropriate orders
thereon in accordance with law shall be passed by the
Inspector General of Registration within another four months.
Subject to the petitioner thus moving the inspector General of
Registration, the interim order passed by this Court in C.M.P.
NO.12626/1999 will continue till orders are passed by the said
authority.”
4. In pursuance to Ext.P5, the 6th respondent herein, who
was the then Secretary of the new association, filed a representation
dated 25.1.06. The 2nd respondent thereafter passed Ext.P6 order.
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In Ext.P6 order it was held that a detailed reading of the depositions
and the records submitted as exhibits would show that the claims
made by the petitioner herein and Shri. Mathew carries reasonable
material for consideration. But he proceeded to hold that the issue
raised before him was beyond his jurisdiction. It was held that
remedy against Ext.P4 is provided in Section 25 of Act 12 of 1955.
According to the 2nd respondent, if a person is aggrieved, he should
move the State Government and the State Government in turn
should apply to the District Court for dissolution of the Society. It is
challenging Ext.P6 and seeking the reliefs mentioned above that this
writ petition has been filed.
5. The 4th respondent, Kerala Cricket Association, has filed
an affidavit supporting the plea in the writ petition. According to the
4th respondent, they are the State Association with 14 district level
units all over the State and the petitioner is one such unit recognised
by them, functioning in the Idukki district of Kerala. It is pointed out
that their byelaws do not contemplate separate registration for the
district wise units and they accept that the petitioner in this writ
petition is the Secretary of their Idukki unit.
6. The 6th respondent, who was instrumental in the
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incorporation of the new association, has also filed a counter affidavit
wherein he has taken a totally different stand. According to him, of
late he has realised the mistake and he wants the petitioner-
association to be in existence as the representative of the 4th
respondent.
7. The Idukki District Cricket Association (the new
association) was not impleaded as a party in this writ petition. By
filing I.A. No. 5743/07 they have sought to be impleaded as
additional respondent No.7. According to them they are a necessary
party to these proceedings and therefore they ought to be impleaded.
Though the writ petitioner has filed a counter affidavit resisting their
impleadment, during the course of the hearing the contentions were
not seriously urged. Therefore I allowed I.A. No.5743/07 and they
are impleaded as additional respondent No.7.
8. Sri. V.N. Achutha Kurup, learned Senior Counsel
appearing for the additional 7th respondent, points out that the writ
petition as originally filed is defective for non-impleadment of the new
association. According to him the said defect is fatal, warranting
dismissal of the writ petition. It is contended that the new association
is an organisation independent of the 4th respondent and therefore it
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is entitled to be incorporated at least at a district level. Learned
counsel further points out that if the 4th respondent is hostile to them,
the best they can do is to recognise their existence. But they cannot
object to the incorporation of such an organisation. In his attempt to
sustain Ext.P6 order, the learned counsel submits that the 2nd
respondent lacks power to upset Ext.P4 order and that if any one is
aggrieved by Ext.P4, recourse will have to be taken to the provisions
of Section 25 of the Act and the State Government should move an
application to the District Court for dissolution of the association.
On this ground learned Senior Counsel seeks dismissal of the writ
petition.
9. I have considered the rival submissions made by the
counsel appearing for both sides. The primary question that arises
for consideration is whether Ext.P6 order is sustainable or not. But
before I decide the validity or otherwise of Ext.P6, the preliminary
objection raised by learned Senior counsel regarding maintainability
of the writ petition has to be dealt with. It is true that as originally
filed, the writ petitioner had not impleaded the Idukki District Cricket
Association (the new association) as a party. As such, that defect
would have been fatal, warranting dismissal of the writ petition.
WPC NO 11619/06 Page numbers
However, in this case the new association itself has voluntarily got
itself impleaded. They have also filed a detailed affidavit in support
of their contentions and detailed arguments were also led in support
of Ext.P6 order. Therefore, not only that they have now come on
record as additional respondent No.7 but also they had an effective
opportunity to resist the contentions of the petitioner. In such a case
the fact that they were not originally impleaded loom its significance
as it has not caused any prejudice to them. For all these reasons
the preliminary objection raised by the learned counsel is only to be
rejected and I do so.
10. Coming to the merits of Ext.P6 order, it was rendered
pursuant to Ext.P5 judgment. In Ext.P5 judgment, all parties
including the new association and the petitioner, had agreed that the
parties could be relegated to the 2nd respondent for resolution of the
dispute. It was accordingly that this Court had directed the 6th
respondent to file a representation to the 2nd respondent, who was
ordered to consider the entire issue. In Ext.P6 order the 4th
respondent found that the contentions of the writ petitioner and the
Secretary of the State association carries reasonable materials for
consideration. However, the 2nd respondent held that the matter was
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beyond his jurisdiction and therefore he was incompetent to
adjudicate the issue and at the same time unsettled Ext.P4 order.
This approach of the 2nd respondent is contradictory. If he was
incapable of resolving the issue, he should have not left it there
without disturbing Ext.P4 and thus unsettling the position.
11. In so far as his plea of lack of jurisdiction is concerned,
the same appears to be on the basis of the provisions contained in
Act 12 of 1955. When this issue was argued in court, learned
counsel for the petitioner placed reliance on Section 21 of the
General Clauses Act 1897 and 20 of the State Act. Elaborating this
aspect, the learned counsel made reference to the judgment of this
Court in Institute of Social welfare v. State of Kerala & Ors. [2000
(1) K.L.J. 869] wherein it has been held as follows:
“The argument of counsel for the Election Commission that
there is only a power in the Election Commission to register and
there is no power to de-register has only to be stated to be
rejected. It is clear that whenever a power to do something is
conferred on a body, there is also conferred on that body the
power to undo the same. Sections 16 and 21 of the General
Clauses Act (corresponding to Sections 15 and 20 of the Kerala
Act) also recognise such power. The power to do something
obviously includes the power to undo that thing and the Election
Commission cannot be heard to contend that once it has given
registration to a political party, it has no right to act if that party
with impunity, flouts the Constitution or subvert the sovereignty
or democracy or the rule of law, the basis of our democracy.
We have therefore no hesitation in holding that when a call for
hartal made by an association or body of citizens is enforced by
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force and the activities of others unwilling to respond to the call
is brought to a standstill by threat coercion or force, an occasion
clearly arises for the Election Commission to take action for
cancelling the registration or for de-recognition of that body or
association.”
12. This argument of the learned counsel for the writ
petitioner is resisted by the learned Senior counsel appearing for the
additional 7th respondent by making reference to Section 25 of Act 12
of 1955, which has been relied on by the 2nd respondent in Ext.P6.
According to the learned counsel against Ext.P4 the remedy
available is to move the State Government which in turn can move
the District Court for dissolution of the association. According to the
learned counsel since the act 12 of 1955 provides a remedy in
Section 25 thereof, recourse to the provision of General Clauses Act
is not permissible.
13. In my view, the procedure canvassed by the learned
Senior Counsel is not what is contemplated in Section 25. Section
25 does not confer right on any stranger to move the State
Government but is a power available to the Government only. The
other category of persons whose right is recognised in Section 25 to
move the District Court are the members of the association
concerned. In this case, even according to the additional 7th
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respondent, the petitioner or the 4th respondent are not members of
the new association and therefore recourse to Section 25 is not
available to a stranger like the petitioner. In such a situation the
petitioner is entitled to move the 3rd respondent who can certainly
invoke the power under Section 21 of the Central Act (Section 20 of
the State Act) and as recognised by this Court in the aforesaid
judgment, undo an act which requires to be undone. If that power is
available, the stand of the 2nd respondent that he lacks power in this
regard is erroneous and cannot be approved. For the same reason, I
also cannot agree with the finding of the 2nd respondent that
cancellation ordered by the 3rd respondent was without jurisdiction.
14. In the result, I hold that Ext.P6 order passed by 2nd
respondent is illegal and cannot be sustained. Accordingly, Ext.P6
order will stand quashed and the 2nd respondent will reconsider the
representation dated 25.1.06 submitted by the 6th respondent in
pursuance to Ext.P5 judgment and pass fresh orders thereon dealing
the entire issues raised by the parties. It is made clear that before
final orders are passed as above petitioner, respondent Nos.4 & 6
and the additional respondent No.7 shall be given notice and
afforded sufficient opportunity to be heard. It is also ordered that if
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any of the parties files any supplementary representation, that will
also be considered and representation, if any, shall be made within a
period of one month from the date of receipt of a copy of this
judgment and the final orders as directed shall be passed within
three months thereafter.
The writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
vps
WPC NO 11619/06 Page numbers
A.K. BASHEER, JUDGE
OP NO.8348/01
JUDGMENT
2nd August, 2007