THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.1.2007
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
W.P.No.15907 of 2001,
W.P.No.40827 of 2002,W.P.No.6081 of 2004
and
W.P.No.7274 of 2006
R.Kannan .. Petitioner in
W.P.No.15907 of 2001,
W.P.No.40827 of 2002 &
W.P.No.6081 of 2004
C.Duraipandian .. petitioner in
W.P.No.7274 of 2006
vs.
The Secretary to Government,
School Education Department,
Fort St. George,
chennai - 9 .. 1st respondent
in W.P.No.15907 of 2001
The Director of School Education,
College Road,
Nungambakkam, Chennai – 6. .. 2nd respondent
in W.P.No.15907 of 2001, 1st respondent in W.P.No.40827 of 2002
and W.P.No.6081 of 2004
The District Educational Officer,
Madurai. ..3st respondent
in W.P.No.15907 of 2001,
4th respondent in W.P.No.40827 of 2002 and
2nd respondent in W.P.No.6081 of 2004
C.Duraipandiyan
(R.4 impleaded as per the order
dated 18.12.2001 in
W.M.P.No.35537 of 2001) .. 4th respondent in
W.P.No.15907 of 2001
and 5th respondent in W.P.No.40827 of 2002
The Joint Director of School
Education (Higher Secretary),
College Road,
Nungambakkam, Chennai – 6. .. 2nd respondent in
W.P.No.40827 of 2002
The Chief Educational Officer,
Madurai .. 3rd respondent
in W.P.No.40827 of 2002
The Government of Tamil Nadu,
rep. by its Secretary,
Commercial Taxes Department,
Chennai – 600 009. .. 1st respondent in
W.P.No.7274 of 2006
The Inspector General of Registration,
Santhome High Road, Chennai – 600 028 .. 2nd respondent in
W.P.7274 of 2006
R.Kannan .. 3rd respondent
in W.P.No.7274 of 2006
These Writ Petitions are filed under Article 226 of the
Constitution of India as stated therein.
W.P.No.15907 of 2001:
For petitioner : Mr.G.Masilamani
Senior Advocate for
Mr.G.K.R.Pandian
For respondents : Mr.C.Thirumaran
Government Adv ocate
for R1 to R3
Mr.K.Doraisami, Senior Advocate
M/s.Muthumani Doraisami for R4
W.P.No.6081 of 2004:
For petitioner : Mr.G.Masilamani
Senior Advocate for
Mr.G.K.R.Pandian
For respondents : Mr.C.Thirumaran
Government Advocate for R1
W.P.No.40827 of 2002:
For petitioner : Mr.G.Masilamani
Senior Advocate for
Mr.G.K.R.PandianFor respondents : Mr.C.Thirumaran
Government Advocate for R1 to R4
Mr.K.Doraisami, Senior Advocate for
M/s.Muthumani Doraisami for R5W.P.No.7274 of 2006:
For petitioner : Mr.K.Doraisami, Senior Advocate
M/s.Muthumani DoraisamiFor respondents : Mr.C.Thirumaran
Government Advocate for R1 & R2
Mr.G.Masilamani
Senior Advocate for
Mr.G.K.R.Pandian for R3C O M M O N O R D E R
W.P.No.15907 of 2001:
The writ petition has been filed for the issuance of a
Writ of Certiorari to call for the records on the file of
the third respondent vide his proceedings in
Na.Ka.No.931/Ah.3/2001, dated 24.8.2001 and the
consequential order vide proceedings in
Na.Ka.No.931(2)/Ah.3/2001, dated 24.8.2001 and quash the
same.
W.P.No.40827 of 2002:
The writ petition has been filed for the issuance of a
Writ of Certiorarified Mandamus to call for the records of
the second respondent vide his proceedings
No.Thi.Mu.22946/W12/2002, dated 22.10.2002 and the
consequential order passed by the fourth respondent vide his
proceedings No.Mu.Mu.No.931/Aa3/2002, dated 1.11.2002, quash
the same and further to direct the respondents 1 to 4 to
continue the direct payment of salary to the staffs of the
School till the Statutory Appeal preferred by the petitioner
on behalf of the Educational Agency under Section 44(5) of
the Tamil Nadu Societies Registration Act, 1975, is disposed
off in accordance with law.
W.P.No.6081 of 2004:
The writ petition has been filed for the issuance of a
Writ of Certiorarified Mandamus to call for the records of
the second respondent in his proceedings in
Na.Ka.No.931/B1/2001, dated 5.12.2003, quash the same and to
direct the second respondent to approve the re-nomination of
the petitioner as the Secretary of the School Committee of
Muthuthevar Mukkulathore Higher Secondary School.
W.P.No.7274 of 2006:
The writ petition has been filed for the issuance of a
Writ of Certiorari to call for the records of the first
respondent in G.O.Ms.(RT) No.1186/2002, dated 27.12.2002,
and the consequential order of the second respondent in
No.57706/A1/2002, dated 9.8.2005 and quash the same.
2. All the writ petitions are taken up together to be
heard and disposed of, since they pertain to connected
issues.
3. Heard the learned counsels appearing on behalf of
the petitioners as well as for the respondents.
4. It is submitted by the petitioner, namely, R.Kannan
in W.P.No.15907 of 2001, W.P.No.40827 of 2002 and
W.P.No.6081 of 2004 that Muthuthevar Mukkulathore Higher
Secondary School, Madurai, was started in the year 1953. In
the year, 1957, Sri.K.Muthuthevar Mukkulathore Secondary
School Trust (Educational Agency) was registered under the
Societies Registration Act, 1860, with registration
No.2/1957. Allegedly the Educational Agency, namely, the
above named Society, had become defunct, on 26.1.1983, under
Section 44(2) of the Tamil Nadu Societies Registration, Act
1975. However, the same was not known to the office bearers
of the Educational Agency as well as the School Committee of
Muthuthevar Mukkulathore Higher Secondary School, Madurai.
5. On 6.6.1999, R.Kannan was unanimously elected as the
Secretary of the Educational Agency, namely,
Sri.K.Muthuthevar Mukkulathore Secondary School Trust.
Consequently, R.Kannan was appointed as the Secretary of
Muthuthevar Mukkulathore Higher Secondary School Committee,
on 17.2.2000. On 29.2.2000, the District Educational
Officer, Madurai had approved the nomination of R.Kannan as
the Secretary of the said School Committee. On 14.2.2001, a
statutory appeal had been preferred, under Section 44(5) of
the Tamil Nadu Societies Registration Act, 1975, by the
petitioner, on behalf of the Educational Agency, against the
order passed under Section 44(2) of the Tamil Nadu Societies
Registration Act, 1975. An appeal was preferred, on behalf
of the Educational Agency, to the Secretary to Government,
Commercial Tax Department, under Section 37(3) of the Tamil
Nadu Societies Registration Rules, 1978, to revive the
society.
6.In the meantime, one C.Duraipandian, (petitioner in
W.P.No.7274 of 2006) had forged the signature of the
Educational Agency’s President, M.Krishnamoorthy, and
fabricated the documents to start another Society with a
similar name as that of the earlier Society, which was
declared as defunct. On 17.2.2001, a police complaint was
given by M.Krishnamoorthy against C.Duraipandian and a
criminal case, under Sections 417,467, 468 and 471 of the
Indian Penal Code, was registered against C.Duraipandian in
Thirunagar Police Station, Madurai, in F.I.R.No.60 of 2001.
7.On 11.5.2001, a show cause notice was issued by the
District Educational Officer, Madurai, on the basis of the
complaint given by C.Duraipandian and his supporters.
Therefore, on 21.5.2001, Kannan had given his explanation to
the District Educational Officer, Madurai, for the show
cause notice, dated 11.5.2001, along with the relevant
supporting documents. An explanation had also been sent to
the Chief Educational Officer, Madurai, along with the
supporting documents, on 8.8.2001. The District Educational
Officer, had cancelled the approval of the petitioner’s
Secretaryship, on 24.8.2001, and on the same day, he had
taken steps for direct payment of the salary to the Staff of
the School by a separate order. The order of cancellation
and the order to make the direct payment of salary has been
challenged in W.P.No.15907 of 2001.
8.On 11.3.2002, Kannan had sent a representation to the
Director of School Education along with the relevant
documents requesting that the Society started by
C.Duraipandian should not be accorded sanction as the
Educational Agency.
9.A writ petition in W.P.No.40827 of 2002 had been
filed against the order of the Joint Director of School
Education, Chennai, approving the School Committee headed by
Bhagiathammal as requested by C.Duraipandian, thereby, the
Society started by C.Duraipandian had also been accorded
sanction as the Educational Agency of the School. On
1.11.2002, the District Educational Officer, Madurai, had
approved C.Duraipandian as the Secretary of the School
Committee. The School having been established in the year
1953, the Educational Agency, namely, Sri.K.Muthuthevar
Mukkulathore Secondary School Trust, was given the
Management of the School from 1957 to 2000 and only one
Society was functioning after coming into force of the Tamil
Nadu Registration Act, 1975. Due to non-filing of the audit
return by the Society, under Section 16 of the Act, the
Society was believed to have become defunct from the year
1983. However, this was neither known to the office bearers
of the Society or the School Committee. Whileso, on
17.2.2000, R.Kannan was appointed as the Secretary of
Muthuthevar Mukkulathore Higher Secondary School Committee.
10.When it came to be known, steps were taken to revive
the defunct society. Since there was a delay in preferring
the appeal against the order declaring the society as
defunct, G.O.Ms.No.1186, Commercial Tax (M) Department,
dated 27.12.2002, had been passed by the Secretary to
Government, Commercial Tax Department, condoning the delay
and exemption, under Rule 37(3) of the Tamil Nadu Societies
Registration Rules, 1978, was granted to prefer the
statutory appeal. The statutory appeal preferred by R.Kannan
was allowed by the Inspector General of Registration,
Chennai, on 9.8.2005. The said order, dated 9.8.2005, has
been challenged by C.Duraipandian in W.P.No.7274 of 2006.
11.With regard to W.P.No.7274 of 2006, the main
contention put forth by the learned counsel appearing for
the petitioner is that the impugned order passed by the
Inspector General of Registration, Chennai, dated 9.8.2005,
is vitiated, as it is in violation of the principles of
natural justice. While passing the impugned order, the
Inspector General of Registration, Chennai, the second
respondent in W.P.No.7274 of 2006, had not considered the
representations of the petitioner, dated 15.6.2002, and
12.2.2003, on merits. A mere reference is made in the
impugned order with regard to those representations.
Further, the petitioner had not been heard or given a
further opportunity of putting forth his contentions before
the impugned order was passed. Therefore, according to the
petitioner, it is clear that the Inspector General of
Registration, had not applied his mind, while passing the
impugned order, dated 9.8.2005. While he had referred to 26
references in his order, both the representations of the
petitioner, dated 15.6.2002 as well as 12.2.2003, have not
been included in the list of references. Even if it is taken
to be true that a notice had been sent to the petitioner to
appear for an enquiry before the impugned order was passed
and even in case, the petitioner had not appeared inspite of
receiving the said notice, it is the duty cast on the the
Inspector General of Registration, to consider the written
representations submitted by the petitioner on merits. He
has also submitted that G.O.Ms.(RT) No.1186, dated
27.12.2002, had been passed by misconstruing the provisions
of Section 54 of the Tamil Nadu Societies Registration Act,
1975, granting exemption of Section 37(3) of the Act. In
such circumstances, the order, dated 9.8.2005, is void and
cannot be sustained in the eye of law.
12.Another contention raised by the petitioner is that
the impugned order of the the Inspector General of
Registration, Chennai, dated 9.8.2005, says that the
Notification issued, under Section 44 of the Tamil Nadu
Societies Registration Act, 1975, (hereinafter called as the
Act) dissolving Sri K.Muthuthevar Mukkulathore Secondary
School Trust, (Registration No.2/1957) is unsustainable,
since the Gazette Notification was wrongly issued under
clause 3 of Section 44 instead of clause 4 of Section 44 of
the Act. The petitioner states that even if a wrong
provision has been quoted, the second respondent ought to
have taken into consideration the fact that the contents of
the Gazette Notification is only regarding the dissolution
of the Trust. If the reasoning of the Inspector General of
Registration, Chennai, is accepted, then hundreds of
Societies dissolved under the same Notification would have
to be revived and it would cause a major chaos and it would
amount to unsettling many settled issues.
13.The Inspector General of Registration, Chennai, in
his impugned order, dated 9.8.2005, had primarily proceeded
on the footing that there was no order of dissolution of the
Society. As the said Trust had continued to be in existence
from the time of its inception in the year 1957, there was
no necessity of an order to be passed in the appeal,
reviving the said Trust, as prayed for.
14. With regard to the issue of locus standi, it was
stated that R.Kannan, the third respondent in W.P.No.7274 of
2006, who lacks the status to question the dissolution of
the Trust and for requesting restitution of the same, since
he could not have been made a member of a defunct Trust,
which had later been legally dissolved. The petitioner
C.Duraipandian is the person, who is really aggrieved by the
order, dated 9.8.2005.
15. Per contra, the learned counsel appearing for the
third respondent has submitted that the petitioner
C.Duraipandian cannot be taken to be an aggrieved person or
an interested person, since he is not even a member of Sri
K.Muthuthevar Mukkulathore Higher Secondary School Trust,
registered in the year 1957, under Registration No.2/1957.
It is the petitioner, who has not come to this Court with
clean hands and that the writ petitions have been filed with
a malafide intention to appropriate the properties managed
by the Trust as well as the good will that has been created.
16. The learned counsel appearing on behalf of R.Kannan
had contended that the petitioner C.Duraipandian could not
challenge the order, dated 27.12.2002, granting exemption to
Sri K.Muthuthevar Mukkulathore Secondary School Trust,
(Registration No.2/57) to file an appeal under Section 44(5)
of the Tamil Nadu Societies Registration Act, 1975, since it
would be hit by laches, as it is challenged after more than
three years from the date of such order.
17. With regard to the order of the second respondent,
dated 9.8.2005, which is also under challenge in the said
writ petition in W.P.No.7274 of 2006, it is contended on
behalf of the third respondent therein that the
representations said to have been made by the petitioner, on
15.6.2002 and 12.2.2003 have been considered by the second
respondent in his order, dated 9.8.2005. The second
respondent’s order ought not be taken as a judicial order
with mathematical accuracy and logical perfection in its
findings. It is clear on the face of the order that the
representations of the petitioner had been considered and
there was enough application of mind on the part of the
second respondent. Further, it is contended on behalf of the
third respondent that the second respondent, while disposing
of the appeal, has given sufficient reasons for his order
stating that the Trust is found to have been continuously
functioning without any lapses, including regular accounting
and conducting of general body meetings, based on the
report submitted by the District Registrar, Madurai (South).
Therefore, it is not proper on the part of the petitioner,
C.Duraipandian, to contend that the second respondent had
not come to any concrete conclusion in his order, dated
9.8.2005, with regard to the above mentioned Trust. From the
order, dated, 9.8.2005, passed by the second respondent, it
is seen that he has concluded by saying that there is no
necessity of passing any order in the appeal reviving the
Trust, as it had never become defunct in the eye of the law.
18.It was contended on behalf of C.Duraipandian that
the appropriate Gazette Notification had not been published
in accordance with Section 44(4) of the Act, enabling
R.Kannan to file an appeal under Section 44(5) of the Act.
Publication of the Gazette Notification under Section 44(3)
will not enable him to file an appeal under Section 44(5).
That being the position of law, as held by the Inspector
General of Registration, Chennai, the entire exercise
undertaken by R.Kannan leading up to the appeal, would have
been redundant and various other consequences would have
arisen in such a scenario. In order to settle the major
issues, it was necessary for the Inspector General of
Registration, Chennai, to have taken a clear stand, one way
or the other, by his order, dated 9.8.2005. However, on a
careful perusal of the second respondent’s order, dated
9.8.2005, it could be seen that new avenues have been opened
by unsettling the settled position of facts and law.
19.The learned counsel appearing on behalf of the
petitioner R.Kannan had pointed out all the relevant
provisions of the Tamil Nadu Societies Registration Act,
1975, while stating that the Society in question was to have
become defunct under the relevant provisions and the only
remedy available was to revive the same in accordance with
the provisions of law. Therefore, the required steps had
been taken to revive the Society, after obtaining the
necessary leave to condone the delay in making the
application. Once an order had been passed to revive the
Society, such revival would date back to its inspection, as
though there was no break in its continued existence. In
accordance with the provisions of the Tamil Nadu Societies
Registration Act, 1975, the Society was deemed to have been
dissolved, since it had not complied with the prescribed
conditions necessary in law for its continued existence.
However, when an appeal had been filed challenging the order
of dissolution of the Society, the Secretary Commercial Tax
Department, Government of Tamil Nadu, had passed G.O.Ms.(RT)
No.1186, dated 27.12.2002, granting exemption to the
petitioner Trust to file an appeal to the Inspector General
of Registration, under Section 44(5) of the Tamil Nadu
Societies Registration Act, 1975. Thereafter, the petitioner
had made a representation to the Inspector General of
Registration, Chennai, against the removal of the Society
from the list of Registered Societies. However, the
Inspector General of Registration, Chennai, in his
proceedings No.57706/A1/2002, dated 9.8.2005, had stated
that the Society in question, namely, Sri.K.Muthuthevar
Mukkulathore Higher Secondary Trust, Madurai, Registration
No.2/1957, had never been validly removed from the list of
registered Societies, in accordance with the provisions of
law and therefore, there was no need for an appeal or
representation to challenge such removal of the Society from
the list of registered Societies. In effect, by the said
order, dated 9.8.2005, the Inspector General of
Registration, Chennai, had recognised the continued
existence of the said Society, without recognising
Muthuthevar Mukkulathore Higher Secondary School Committee
said to have been formed on 5.1.2001 and registered,
subsequently, with Registration No.1/2001 as stated by the
petitioner in W.P.No.7274 of 2006. Therefore, the said writ
petition W.P.No.7274 of 2006, had been filed challenging
both the Government Order in G.O.Ms.R.T.No.1186, dated
27.12.2002 and the order, dated 9.8.2005, passed by the
Inspector General of Registration, Chennai.
20.Now, the main question, which has to be decided by
this Court is as to which of the two Societies namely,
Sri.K.Muthuthevar Mukkulathore Secondary School
Trust,(Registration No.2/1957) and Muthuthevar Mukkulathore
Higher Secondary School Committee (Registration No.1/2001),
is the Society which would be recognised in the eye of law
to be the Educational Agency to administer and manage the
Muthuthevar Mukkulathore Higher Secondary School, Tirunagar.
To answer the said question, it has to be found whether
Sri.K.Muthuthevar Mukkulathore Secondary School Trust,
Madurai, with registration No.2/1957, continued to be a
registered Society from its initial date of registration or
whether it had become defunct under Section 12 of the Tamil
Nadu Societies Registration Act, 1975, and thereafter,
revived by subsequent orders passed by the concerned
authorities. The answer to the said question would also
depend upon whether Muthuthevar Mukkulathore Higher
Secondary School Committee, with registration No.1/2001, had
legally and validly taken over the administration and
management of Muthuthevar Mukkulathore Higher Secondary
School, Tirunagar, at that time the earlier society was said
to be not in existence. All the issues involved would
possibly be settled if the matter is remitted back to the
Inspector General of Registration, Chennai, to decide the
matter afresh with regard to the legal position of the rival
societies which are in contention, after giving sufficient
opportunity to all the parties concerned. The above writ
petitioners are given liberty to make detailed
representations, along with the relevant supporting
documents, in making their claims to the Inspector General
of Registration, Chennai, within a period of two weeks from
the date of receipt of a copy of this order. The Inspector
General of Registration is directed to decide the issues on
merits and in accordance with law, based on the said
representations, within six weeks from the date of receipt
of such representations, by fixing specific dates of
hearing, enabling the parties to participate in the
proceedings.
21.Therefore, the earlier order No.No.57706/A1/2002,
dated 9.8.2005, passed by the Inspector General of
Registration, Chennai, in this regard is set aside and the
parties are to maintain status quo as on today till the
final disposal of their representations by the Inspector
General of Registration, Chennai.
22.With the above directions, the writ petitions are
disposed of.
To:
1. The Secretary to Government,
School Education Department,
Fort St. George,
chennai – 9
2. The Director of School Education,
College Road,
Nungambakkam, Chennai – 6
3. The District Educational Officer,
Madurai
4. The Joint Director of School
Education (Higher Secretary),
College Road,
Nungambakkam, Chennai – 6
5. The Chief Educational Officer,
Madurai
6. The Government of Tamil Nadu,
rep. by its Secretary,
Commercial Taxes Department,
Chennai – 600 009
7. The Inspector General of Registration,
Santhome High Road, Chennai – 600 028