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Judgment
I.P. MUKERJI, J.
There is a sizable Chinese community in Kolkata. Almost all its members are permanently settled here. Their ancestors migrated to this city a long
time ago. There is a specific area in the city where there is concentration of this community. It is called China town. You will find Chinese culture,
tradition, food, religion and way of life in every corner of it. It is no wonder that these Chinese people wanted to educate their children in the Chinese
tradition. In 1929, they started their own school Pei May Chinese High School in a small hut.
We do not know when the association was born but the Chinese Tannery Owners’ Association was founded by these Chinese people. This
association, on 18th January, 1946 purchased a parcel of land of more than 3 and 1/2 bighas in Tangra, in China Town. It is numbered as premises No.
P1 & 2 Iswar Mandal Lane, Kolkata-46. In 1950, the school shifted to this plot of land. This association was registered much later on 18th May, 1967
under the West Bengal Societies Registration Act, 1961. The registered address was 6 New Tangra Road, Kolkata â€" 700046. This association has a
memorandum. It mentions this school as its sister concern, with an independent managing committee.
On 19th February, 2010 Pei May Chinese High School was registered as a society under the said Act. On 18th July, 2010 an election of the managing
committee of the school was held. Liu Kao Chao was elected as the President. Li Shih Lin was elected as the Secretary of the School/society. Chen
Khoi Kui also contested for the post of secretary but was unsuccessful. On 17th August, 2010, Chen Khoi Kui describing himself as the elected
secretary of Pei May High School lodged a complaint with the Registrar of firms, Society and non-trading corporation that the new association had
been registered fraudulently by some members of the Chinese Tannery Owners’ Association. On 17th August, 2010, complaints were made by
three persons Chung Chih Ping, Liwan Tho and Li Chih with the Registrar, that their names had been included in the memorandum of the association
and its regulations without their knowledge and consent.
The ground made by the school represented by its secretary Li Shih Tin in a writ application filed in this Court (WP NO.4 of 2011) was that the
Registrar, on receiving the complaints ought to have cancelled the certificate of registration of the association and failed to discharge his duty in not
doing so. On 10th January, 2011 this writ application was disposed of by this Court simply by asking the respondent authority to give its decision in the
matter. On 25th January, 2012 the Registrar made a decision rejecting the application for cancellation of the school registration, on the ground, that he
had no power to do so. This time the school represented by its secretary Mr. Chain Khoi Kui filed another writ application (WP NO.140 of 2012)
challenging this decision. On 16th July, 2015 this Court opined that the Registrar had the power and disposed of the writ by remanding the matter back
to him. An appeal followed. On 14th January, 2016, the Appellate Court affirmed this order.
On 19th April, 2016 the Registrar ruled that registration of the school was obtained by suppressing facts. He said that the school according to the
memorandum of association of the Chinese Tannery Owners’ Association belonged to them and was run by their members. It had to amend the
memorandum of association, by permitting the school to be run by a separate society from their property. Unless this was done the school could not be
registered as a separate association in the self-same premises where the Chinese Tannery Owners’ Association ran the school. Hence, the
registration of the school was cancelled.
In those circumstances the present writ application (WP 518 of 2016) was preferred. Shortly, the grounds in support of it were that the Registrar did
not have the power to cancel the registration, the respondent authority had violated the principles of natural justice, by not hearing the appellants and
providing them the documents he relied upon. The authority had no jurisdiction to try questions of fact like forgery which were before the Civil Court
where disputes between the parties were pending adjudication.
The cancellation of registration would have the effect of dislodging 200 staff members from the school. The present writ application was dismissed by
a very detailed judgment and order pronounced by Mr. Justice Arijit Banerjee on 18th May, 2017. The first and foremost point raised on behalf of the
appellants by Mr. Sarkar learned Senior Advocate was that the Registrar had no power to cancel the registration of their school Pei May Chinese
High School. The West Bengal Societies Registration Act, 1961 gave him no such power. Power was sought to be derived from Section 22 of the
Bengal General Clauses Act, which was in the following terms:
“S.22 â€" Power to issue to include power to add do, amend, vary or rescind orders, etc. Where, by any Bengal Act or West Bengal Act a power
to issue orders, rules, bye-laws, or notifications is concerned, then, that power includes a power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to, amend, rescind any order, rules, bye-laws or notifications so issued.†It was argued that
under Section 25 of the said Act on the application of the Registrar or of not less than 1/10 of the members of a society, the Court could order
dissolution of the society in the following contingencies:
“S-25. (a) if there is any contravention by the society of the provisions of this Act;
(b) if the number of members is less than seven;
(c) if the society has ceased to function for more than three years;
(d) if the society is unable to pay its debts or meet its liabilities;
(e) if it is proper that the society should he dissolvedâ€
When the dissolution order was made at the instance of the Registrar, it was made under Section 26 after observing the parafernalias of issuing,
serving and hearing of a show cause notice by him. If the society was unable to show cause, the Registrar had to refer the matter to the Court for
passing an order of dissolution, he stated. In Kamla Prasad Khetan and Anr. Vs. Union of India reported in AIR 1957 SC 676, the Court held that the
power to revoke or amend an order was vested in an authority under Section 21 of the General Clauses Act in the same manner the power to make it
was conferred. This view was reiterated by the same Court in Gopi Chand Vs. Delhi Administration reported in AIR 1959 SC 609. The power was
derived from the statute which conferred an authority with the power to issue the order or notification. In Lachmi Narain and Ors. Vs. Union of India
and Ors. reported in (1976) 2SCC 953, the Supreme Court opined that if there was an express bar in the statute authorising a notification or order to
be made, upon the authority making it, to alter amend or withdraw it, then Section 21 of the said Act could not be employed or could not be set up to
justify amendment or withdrawal of an order. (See also State of Madhya Pradesh Vs. Ajay Singh and Ors. reported in (1993) 1 SCC 302.
Mr. Sarkar citing all the above cases submitted that although under Section 7 of the West Bengal Societies Registration Act, 1961, the Registrar had
the power to register a society, the Act did not give him any power to cancel the registration. Section 21 of the said Act could not be invoked to cancel
the registration of the appellant society. He relied on Shimoga Zilla Madivala Sangha and Anr Vs. The District Registrar, for Societies & Associations,
Shimoga District and Anr. reported in ILR 2003 KAR 2906 a single bench decision of the Karnataka High Court held that once the power to register
a society under Section 7 of the said Act had been expressed by the Registrar, he had no further power to recall that order.
The Supreme Court in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Ors. reported in 1980 (Supp) SCC 420 cited by Mr. Mitra,
thought that a tribunal under the Industrial Dispute Act had the power incidental or ancillary to its powers granted to it by the Industrial Dispute Act,
1957 to set aside ex parte orders.
In Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning & Weaving Mills Ltd. & Ors. reported in (2005) 13 SCC 777 also cited by Mr. Mitra, the
Supreme Court held that the said Act did not grant any power of substantive review. The Court made a differentiation between substantive and
procedural review. The former had to be expressly provided by the statute. It involved review of the order on merits. On the other hand procedural
review meant rectification of an order for some procedural defects. The power to rectify the orders arising out of procedural was inherent in a
tribunal. Mr. Mitra argued that there was neither any express bar nor implied bar of application of Section 22 of the Bengal General Clauses Act, 1922
of the West Bengal Societies Registration Act, 1961.
Mr. Sarkar alleged breach of the principles of natural justice by the Registrar. He said an opportunity was not given to his clients to meet the case of
the respondents. He showed us the following passage from the judgment of the Supreme Court in Collector of Central Excise & Land Customs Vs.
Sanawarmal Purohit reported in 1979 (4) E.L.T. J 613 (S.C.) which held that “It is true that a quasi-judicial authority is not required to hold an
enquiry into a dispute before him according to the procedure followed in a Court strio to anagu. Where a tribunal which has power to make such
inquiry as it thinks fit, decides a case on a matter of fact discovered by the Tribunal itself on inspecting the premises in question, it will be a breach of
natural justice if it does not inform the parties and give them a chance of dealing with it. If a tribunal receives from a third party a document relevant
to the subject matter of the proceedings, it should give both parties an opportunity of commenting on it: vide Halsbury’s Laws of England Vol. 11,
p. 66. It was the duty of the Collector of Customs to inform the persons charged before him of the charges against them with full details, the evidence
in support of the charges and to give them an opportunity to meet those charges and the offences against them. A quasi-judicial authority would be
acting contrary to the rules of natural justice if it acts upon information collected by it which has not been disclosed to the party concerned and in
respect of which full opportunity of meeting the inferences which arise out of it has not been given.â€
Mr. Mitra referred to the report of the proceedings before the Registrar dated 24th October, 2016 prepared by the Registrar stating that the appellants
had fully participated in the proceedings and that the respondent No 6 in the Writ Petition No.140 of 2012 was obstructing it by asking for unnecessary
adjournments. At the outset, I say that he learned Single Judge, on the analysis of facts like issuance and service of notices of hearing on the
appellants, their unexplained absence at the hearing before the Registrar etc. has opined that there was no breach of the principles of natural justice.
We find no material or reason to interfere with that finding. The whole problem in this case is thus.
The entire parcel of land at Tangra of over three bighas was purchased by the Chinese Tannery Owners’ Association on 18th January, 1946. Pei
May Chinese High School was running from P1 and 2 Iswar Model South Tangra Kolkata-46, which is the municipal address of that very parcel of
land. The address of the Chinese Tannery Owners’ Association was Premises No.6 New Tangra Road, Kolkata â€" 46, which is different. Now,
Pei May Chinese High School was registered on 19th February, 2010 as a society.
Now, the question which is raised by the appellants is that their society could be registered under the said Act showing its registered address as that of
the school belonging to the other society. The association says that the said premises always belonged to the Chinese Tannery Owners’
Association. The object of this association was to run this school. Therefore, whilst the association was functional no society showing its registered
address as that of the school and with the object of running it could be registered as a society under the West Bengal Societies Registration Act, 1961.
In those circumstances, its registration was liable to be cancelled.
Our consideration is limited to determining where the Registrar had made a fair and reasonable decision with regard to the matter in issue. Before we
do that we have to deal with the objection of the appellant that the Registrar, after registration of the society did not have the power to cancel it. The
Law may be summarised as follows:
A statute may confer both administrative and judicial powers on an authority. This power may include the authority to issue orders, notifications and so
on. Whilst granting this power the statute may regulate its exercise by stipulating amongst other things whether the authority would have the power to
review its own decision. It is settled law that a Court of records has the inherent power to review its decision. The Civil Courts have the same under
the code of civil procedure. It is not a Court of records a Court needs an express mandate of the legislature to review its own order. If the power
conferred on the authority is administrative and if there is no bar express or implied in the statute conferring the power upon an authority, to review is
decision, it may do so under Section 21 of the General Clauses Act, 1897 or Section 22 of the Bengal General Clauses Act, 1922. In some cases like
Grindlays Bank Ltd. Vs Central Government Industrial & Ors. reported in 1980 (Supple) SCC 420 the Supreme Court has recognised the power of a
judicial authority to alter its decision by setting aside ex parte orders or dismissals for default, although there was no power to review conferred on the
on the judicial authority, by the statute.
In my opinion, the power conferred on the Registrar under the West Bengal Societies Registration Act is partly administrative or executive and partly
judicial when it comes to registering a society. Let us first look at Section 7 of the West Bengal Societies Registration Act, 1961. The Registrar is
required to be satisfied that the memorandum and the regulations accompanying it comply with the requirement of the Act and the Rules. Section 5
deals with the memorandum of Association. It provides that the Association, in order to register must have a name, address of the registered office of
the association, object of the association.
True the statute does not provide any power to the registrar to “cancel the registration†although Section 26 empowers him to dissolve the society
if it is not managing its affairs properly or is not functioning. In this case also upon prima facie formation of an opinion by the Registrar of the above
facts, he is to refer the matter to the Court for an order of dissolution. Section 25 authorises 1/10 of the members of the association to ask the Court
for dissolution on the grounds set out hereinbefore. However, there is no express or implied bar in the Act forbidding the Registrar from cancelling the
registration. If there is no bar in the said Act the Registrar had the power to revoke or recall the registration of a Society in the same manner and
subject to the same restrictions while exercising the power to register it.
Otherwise, look at the great inconvenience and hardship that would be caused to the Registrar and the general public. Let us take an example. It is
discovered by the Registrar that the identity of the members of an association had been wrongly or fraudulently disclosed at the time of its registration.
The organisation is that of terrorists. They want to quickly collect funds in the name of charity and misapply it. This does not fall into any one of the
grounds of Section 25. The Registrar must have the power to take immediate steps to cancel the registration. He can do so only under Section 22 of
the Bengal General Clauses Act, 1922. I can very firmly say that the power under Section 22 of the said Act was fully preserved while enacting the
West Bengal Societies Registration Act, 1961. In fact, there is no provision in the West Bengal Societies Registration Act, 1961 empowering the
Registrar to take immediate action against a society which has registered itself by practising fraud, forgery misrepresentation etc. or which has been
registered by mistake.
In such type of cases where immediate action is required to save the public from harm is the Registrar supposed to act only under the long drawn
procedure prescribed by Sections 25 and 26 of the said Act? The answer is no. Now, let me examine the impugned order of the Registrar dated 19th
April, 2016. He observes that in Clause (1) (a) of the memorandum of association of the Chinese Tannery Owners’ Association the school Pei
May school at P1 and 2 Iswar Model South Tangra Kolkata-46, would be run by the Chinese Tannery Owners’ Association. This association was
registered under the said Act on 18th May, 1967. This school functions from the said large parcel of land belonging to the association in Tangra. Pei
May Chinese High School was sought to be registered as an association in 2010 showing the school premises as its address. Nothing was shown from
which it could appear that the association had given the land and school to the new association or that had given permission to the school to set up a
different society but on the property of the association. The Registrar came to the conclusion that the registration was obtained by supression of facts.
By its decision dated 19th April, 2016, it cancelled the registration.
I think that the Registrar acted on the right premises and took the right factors into account in arriving at this decision. Theoretically there is no bar to
two associations claiming that their offices are at a parcel of land at Tangra. But the latter association had the obligation to show that either part of the
land was sold to them or given user to them by lease or licence. The Registrar came to findings of facts which are reasonable and plausible.
Moreover, I am told that civil suits are pending in various courts at Kolkata between two rival factions of the Chinese association. In this appeal the
Court is not entrusted with any responsibility to ascertain the right, title and interest of the parties over the above property. The Court is only to see
whether the decision of the Registrar was correctly made and also whether he exercised his jurisdiction correctly.
I am of the opinion that the Registrar has correctly addressed the facts of this case in a short order but containing adequate reasons. He has tried to
justify his decision to cancel the registration of the school as a society. In those circumstances, I think that he exercised his jurisdiction properly. The
learned Court below was correct in identifying this and dismissing the writ application. The judgment and order dated 18th May, 2017 is affirmed. This
appeal is dismissed. No order as to costs. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite
formalities.