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Judgment
K. Chandru, J.—Heard both sides and perused the records.
This Writ Appeal is directed against the order of the learned Judge made in W.P.(MD).1361 of 2008 dated 25.06.2008, by which the writ
petition was dismissed and the learned Judge declined to interfere with the impugned order dated 14.01.2008.
By the impugned order, the first respondent Registrar accepted the Form-VII filed under the Tamil Nadu Societies Registration Act by the
group led by the second respondent (Gopinathan Nair) and filed it with his records subject to the outcome of the suit in O.S. No. 240 of 2007,
pending on the file of Additional District Munsif, Padmanabhapuram and also in accordance with the Tamil Nadu Societies Registration Act and
Rules framer thereunder. In effect, he recognised the General Council Meeting held on 08.06.2007, pursuant to the notice of meeting issued by
Gopinathan Nair, dated 11.07.2007. He also refused to accept the Form-VII submitted by the appellant vide his request dated 13.10.2007.
Therefore, the petitioner aggrieved by the order of the first respondent approached this Court with W.P.(MD). No. 1361 of 2008 seeking to set
aside the order of the District Registrar dated 14.01.2008 and for consequential directions.
Initially, the appellant had made only the first and second respondents as party to the Writ Petition. Subsequently, respondents 3 to 12 got
impleaded by the order of the learned Judge dated 10.03.2008. The learned Judge, after placing reliance upon the Full Bench Judgment of this
Court in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee Karisal Vs. The District Registrar and Others, , and on
the fact situation, found in this case, came to the conclusion that the appellant is not entitled for any relief claimed in the writ petition.
Since the learned Judge has set out the entire facts leading to filing of the Writ Petition, we are not recapitulating those facts here. Suffice to state
that the petitioner and the appellant Society is a deemed Society under the provisions of the Tamil Nadu Societies Registration Act, 1975 (for
short ""Societies Act"") and it is having its Registration No. 26/69.
The Society is running a private college and also an Higher Secondary School, at Attoor, Kanyakumrai District. The normal practice of the
Educational Department is to accept the Form VII filed with the District Registrar as the basis for recognising an educational agency running the
college and the school. Therefore, there is a great amount of competition in getting Form VII filed with the Registrar so that on the strength of the
same they will also become Managers of the School or the College as the case may be.
The present controversy arose when it was stated that the second respondent had resigned from the Secretaryship of N.V.K. Society, on
17.06.2007 and his resignation was accepted by the General Council on 18.06.2007. In the meeting of the Society held on 20.06.2007, the
appellant claims to have been elected as the Secretary of the Society. Therefore, the appellant submitted a Form VII with the first respondent
District Registrar claiming that he was the elected Secretary of the Society. The first respondent Registrar refused to file the said document as the
previous documents relating to the Society was kept in abeyance, since they have not been filed on time. He kept the Form VII dated 16.07.2007
filed by the appellant pending.
In the mean while, the N.V.K. Society rep.by its President Madhusudhanair filed a suit in O.S. No. 240 of 2007 before the Munisf Court, at
Padmanabhapuram, against the second respondent with a prayer to grant permanent injunction against him from convening any meeting of the
Society or interfering with the administration and smooth functioning of the Society and Educational Institutions. But, however, the group led by V.
Manoharan Nair, (Vice President) the 11th respondent convened a meeting on 06.08.2007 and elected the second respondent as the Secretary.
Pursuant to the said election, they submitted Form VII containing the names of the officer bearers, which was taken on file by the Registrar. In the
interim application filed by the Additional District Munsif, Padmanaburm in I.A. 660 of 2007 and O.S. No. 240 of 2007, after elaborate argument,
the learned District Munsif refused to grant any interim order restraining the second respondent from functioning. He also held that the suit filed by
the plaintiff was not authorised by the Executive Committee and prima facie, it is not maintainable. He also observed the resignation issue will be
gone into during the Trial of the Suit. Because of this reason, the District Registrar, accepted the Form VII filed by the group led by the second
respondent.
Mr. T. Lajapathi Roy, learned Counsel for the appellant submitted that the conduct of the first respondent is objectionable. While dealing with
the Form VII filed by the appellant, he gave certain reasons for not taking it on file. But, he did not adopt the same yardstick when accepting Form
VII of the second respondent and his group. This action is arbitrary and violative of Article 14 of the Constitution. He also submitted that the
learned Judge directing the appellant to go to Civil Court is not proper, since he is not disputing any election conducted for the Society. Further, it
is a simple case and inasmuch as the Form VII was submitted by the appellant was earlier in point of time than that of the second respondent, in all
fairness, his Form should have been taken on file first and the second respondent''s Form VII should have been kept in the file, chronologically to
the appellant''s Form VII.
He further contended that if the power of the Registrar under Sections 34 and 36 is considered to be ministerial acts, then, the appellant''s
request should have been acceded to by the District Registrar. He further submitted that as per the Judgment of the Full Bench (cited supra), the
Registrar has power to conduct an enquiry and prima facie satisfy himself as to which are two Form VII that he should take on file first. In this
context, he relied on the decision of the Full Bench in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee Karisal Vs.
The District Registrar and Others, , and placed reliance upon paragraphs 18 and 20, which are as follows:
The power of the Registrar to enquire into the affairs of the society is only to hold a summary inquiry for his own satisfaction. The said power
cannot be construed as the power of appeal. u/s 36, the Registrar has not been empowered to adjudicate upon the conflicting claims to represent
the society based upon question of fact. A plain reading of Section 36 shows that the Registrar could look into only the provisions of the Act and
the Rules and prima facie materials to arrive at a conclusion either to believe or not to believe Form No. VII in order to effect change in the
register. The power of the Registrar to call for information and explanation u/s 34 does not contemplate any power to examine witnesses or to
allow opportunity for cross examination of witnesses. The power in our view is incidental and it is only for the purpose of maintaining correct
records. As the power to conduct inquiry is only limited in order to find out whether constitution of members are valid, the inquiry is limited only for
the purpose of making entries in the register. However, the exercise of power must not be arbitrary as the orders passed or directions issued by
the Registrar is amenable to challenge in the writ jurisdiction.
...In the event the Registrar satisfies himself as to the particulars furnished in Form VII as correct, he should enter the names in the register
maintained for that purpose. In the event if he does not satisfy as to the particulars and thereby does not accept Form VII, he has to issue a
direction relegating the parties to approach the civil Court for appropriate orders and thereafter shall act as per the orders of the civil Court...
The learned Counsel for the appellant being conscious of the two subsequent Division Bench Judgements, tried to make a distinction between
those decisions and his case. But when that was not possible, he contended that those two decisions by the Division Bench require a
reconsideration, as it is in conflict with the earlier decision of the Full Bench (cited supra). The first decision of the Division Bench is R. Muralidaran
and Others Vs. The District Registrar and Sidharth Heights Apartments Owners Association, and useful reference may be made to the following
paragraph:
In fact, the Full Bench has gone to the extent of holding that the Registrar has no power to direct a Society to hold fresh election, even while
invoking the jurisdiction u/s 36 of the Act. It is made clear by the Full Bench that an election can be set at naught only by the Civil Court in a suit
and not even in an inquiry u/s 36. The necessary corollary of such a conclusion by the Full Bench is that what is not possible even in an inquiry u/s
36, cannot be made possible while receiving Form No. VII and looking into it u/s 34. Therefore the acceptance or rejection of Form No. VII and
the action of the Registrar in calling for additional information or explanation u/s 34 is a mere ministerial act, not amenable to the writ jurisdiction of
this Court. Therefore, the writ petition, out of which, the present appeal arises, is itself not maintainable.
The second Division Bench decision is an un-reported Judgment made in W.A. No. 345 of 2008 in W.P. No. 3543 of 2008 in P.V.
Kadiravan v. Kallar Kalvi Kazhagam dated 30.04.2008, a reference may be made to the following paragraph:
As seen from paragraph 18 of the judgment of the Full Bench extracted above, the Full Bench dealt with the power of the Registrar, both u/s
36 and u/s 34 of the Act. Since Section 36 of the Act empowers the Registrar to conduct an inquiry, the Full Bench held that the exercise of such
power u/s 36 should not be arbitrary as the orders passed by the Registrar would be amenable to challenge in the writ jurisdiction. But, insofar as
the power u/s 34 is concerned, the Registrar is not expected to conduct any inquiry except to call for additional information or explanation and that
too just for the purpose of filing it as Annexure to the original document. Full Bench has clearly held that power u/s 34 is only incidental and it is
only for the purpose of maintaining correct records.
He further submitted that the P.V. Kadiravan''s case rendered by the later Division bench was taken to the Supreme Court in S.L.P.(Civil).
No. 12885 and 12886 of 2008. The Supreme Court has granted leave on 15.05.2008 and directed status quo to be maintained. With reference
to Muralidaran''s case, he submitted that the said decision requires reconsideration. He stated that under Sections 34 and 36 of the Societies Act,
the Registrar does not perform merely a ministerial Act. As to the meaning of the term ""Ministerial duty"", he made reference to P. Ramanatha
Iyer''s Advanced Law Loxicon, which is defined as follows: (See page 3016, Vol.III, 2005 Edition).
Ministerial duty. A duty in which nothing, is left to discretion; a duty performed by one acting under superior authority, or not with unlimited
control; a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.
A ministerial duty, the performance of which may in proper cases be required of the head of a department by judicial process is one in respect to
which nothing is left to discretion.
A ministerial duty arises when an individual has such a legal interest in its performance that neglect of performance becomes a wrong to such
individual.
He further submitted even in case of performing ministerial duty, if it involves any civil consequences, then the hearing of the aggrieved person is
a must. In this context, he referred to the decision of the Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , and
placed reliance upon the following opinion given by P. Bhagavathi, J. found in para:10 of that Judgment, which is usefully extracted below:
Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial function and an
administrative function for this purpose. The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a
rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be
applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made
between one and the other? Can it be said that the requirement of ""fair-play in action"" is any the less in an administrative inquiry than in a quasi-
judicial one? Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial
inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences. There was, however, a
time in the early stages of the development of the doctrine of natural justice when the view prevailed that the rules of natural justice have application
only to a quasi-judicial proceeding as distinguished from an administrative proceeding and the distinguishing feature of a quasi-judicial proceeding is
that the authority concerned is required by the law under which it is functioning to act judicially. This requirement of a duty to act judicially in order
to invest the function with a quasi-judicial character was spelt out from the following observation of Atkin, L.J. in Rex v. Electricity Commissioners
17, ""wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act
judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King Bench Division..."" Lord Hewart, C.J., in
Rex v. Legislative Committee of the Church Assembly 18 read this observation to mean that the duty to act judicially should be an additional
requirement existing independently of the ""authority to determine questions affecting the rights of subjects"" - something super-added to it. This gloss
placed by Lord Hewart, C.J., on the dictum of Lord Atkin, L.J., bedevilled the law for a considerable time and stultified the growth of the doctrine
of natural justice. The Court was constrained in every case that came before it, to make a search for the duty to act judicially sometimes from
tenuous material and sometimes in the services of the statute and this led to oversubtlety and over-refinement resulting in confusion and uncertainty
in the law. But this was plainly contrary to the earlier authorities and in the epoch-making decision of the House of Lords in Ridge v. Baldwin 1
which marks a turning point in the history of the development of the doctrine of natural justice, Lord Reid pointed out how the gloss of Lord
Hewart, C.J., was based on a misunderstanding of the observations of Atkin, L.J., and it went counter to the law laid down in the earlier decisions
of the Court. Lord Reid observed: ""If Lord Hewart meant that it is never enough that a body has a duty to determine what the rights of an
individual should be, but that there must always be something more to impose on it a duty to act judicially, then that appears to me impossible to
reconcile with the earlier authorities"". The learned Law Lord held that the duty to act judicially may arise from the very nature of the function
intended to be performed and it need not be shown to be super-added. This decision broadened the area of application of the rules of natural
justice and to borrow the words of Prof. clark in his article on ""Natural Justice, Substance and Shadow"" in Public Law Journal, 1975, restored
light to an area ""benighted by the narrow conceptualism of the previous decade"". This development in the law had its parallel in India in the
Associated Cement Co. Ltd. v. P.N. Sharma 20 where this Court approvingly referred to the decision in Ridge v. Baldwin 19 and, later in State of
Orissa v. Dr Binapani Dei 21 observed that: ""If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit
in the exercise of such power"". This Court also pointed out in A.K. Kraipak v. Union of India 22 another historic decision in this branch of the law,
that in recent years the concept of quasi-judicial power has been undergoing radical change and said:
The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining
whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons
on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the
manner in which that power is expected to be exercised.
The net effect of these and other decisions was that the duty to act judicially need not be super-added, but it may be spelt out from the nature of
the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural
justice would be attracted.
It must be stated that in the said decision the passage quoted above does not form part of the majority opinion. Even otherwise, it is not an
authority for deciding as to whether a ministerial duty can result in civil consequences.
The learned Counsel, thereafter referred to the decision in Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Another, , and referred to the
following passage found in para: 14, which is usefully extracted below:
The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or
performance whereof may be secured through authorization.
The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the
ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called
courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by
administrators; and administrators are all State officials who are neither legislators nor judges.
(See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar''s Law Lexicon defines judicial function as
the doing of something in the nature of or in the course of an action in court. (p. 1015) The distinction between ""judicial"" and ""ministerial acts"" is:
If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is
merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-
14)
Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the
decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may construe the law and apply it to a particular
state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be defined to be one which a person
performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his
own judgment upon the propriety of the act done. (Law Lexicon, ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple,
definite duty. Presentation of election petition to the High Court within the meaning of Section 81 of the Act without anything more would mean
delivery of election petition to the High Court through one of its officers competent or authorized to receive the same on behalf of and for the High
Court. Receiving an election petition presented u/s 81 of the Act is certainly not a judicial function which needs to be performed by a Judge alone.
There is no discretion in receiving an election petition. An election petition, when presented, has to be received. It is a simple, definite duty. The
date and time of presentation and the name of the person who presented (with such other particulars as may be prescribed) are to be endorsed
truly and mechanically on the document presented. It is a ministerial function simpliciter. It can safely be left to be performed by one of the
administrative or ministerial staff of the High Court which is as much a part of the High Court. It may be delegated or be performed through
someone authorized. The manner of authorization is not prescribed.
Since the learned Counsel insisted on deciding the issue raised by him, it is necessary to refer to the decision of the Supreme Court, reported in
Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . for the purpose of deciding as to what
constitutes civil consequences.
It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being
adversely affected is a sine qua non for the invocation of the audi alteram partem rule. This submission was supported by observations in Ram
Gopal 32, Col. Sinha 33. Of course, we agree that if only spiritual censure is the penalty, temporal laws may not take cognizance of such
consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence,
let us ask ourselves, bypassing verbal booby-traps? ''Civil consequences'' undoubtedly cover infraction of not merely property or personal rights
but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil
life inflicts a civil consequence. ""Civil"" is defined by Black (Law Dictionary, 4th Edn.) at p. 311:
Ordinarily, pertaining or appropriate to a member of a civitas of free political community; natural or proper to a citizen. Also, relating to the
community, or to the policy and government of the citizens and subjects of a state.
The word is derived from the Latin civilis, a citizen... In law, it has various significations.
* * *
''Civil Rights'' are such as belong to every citizen of the State or country, or, in a wider sense, to all its inhabitants, and are not connected with the
organisation or administration of Government. They include the rights of property, marriage, protection by the laws, freedom of contract, trial by
jury etc... Or, as otherwise defined, civil rights are rights appertaining to a person in virtue of his citizenship in a State or community. Rights capable
of being enforced or redressed in a civil action. Also a term applied to certain rights secured to citizens of the United States by the thirteenth and
fourteenth amendments to the Constitution, and by various acts of Congress made in pursuance thereof.
(p. 1487, Black''s Legal Dictionary)
The interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within this gravitational orbit. The most
valuable right in a democratic polity is the ""little man''s"" little pencil-marking, assenting or dissenting, called his vote. A democratic right, if denied,
inflicts civil consequences. Likewise, the little man�s right, in a representative system of Government, to rise to Prime Ministership or
Presidentship by use of the right to be candidate, cannot be wished away by calling it of no civil moment. It civics mean anything to a self-governing
citizenry, if participatory democracy is not to be scuttled by the law, we shall not be captivated by catchwords. The straight forward conclusion is
that every Indian has a right to elect and be elected and this is a constitutional as distinguished from a common law right and is entitled to
cognizance by courts subject to statutory regulation. We may also notice the further refinement urged that a right accrues to a candidate only when
he is declared returned and until then it is incipient, inchoate and intangible for legal assertion - in the twilight zone of expectancy, as it were. This
too, in our view, is logicid sophistry. Our system of ""ordered"" rights cannot disclaim cognizance of orderly processes as the right means to a right
end. Our jurisprudence is not so jejune as to ignore the concern with means as with the end, with the journey as with the destination. Every
candidate, to put it cryptically, has an interest or right to fair and free and legally run election. To draw lots and decide who wins, if announced as
the electoral methodology, affects his right, apart from his luckless rejection at the end. A vested interest in the prescribed process is a processual
right, actionable if breached, the Constitution permitting. What is inchoate, viewed from the end, may be complete, viewed midstream. It is a subtle
fallacy to confuse between the two. Victory is still an expectation; qua mado is a right to the statutory procedure. The appellant has a right to have
the election conducted not according to humour or hubris but according to law and justice. And so natural justice cannot be stumped out on this
score. In the region of public law locus standi and person aggrieved, right and interest have a broader import. But, in the present case, the Election
Commission contends that a hearing has been given although the appellant retorts that a vacuous meeting where nothing was disclosed and he was
summarily told off would be strange electoral justice. We express no opinion on the factum or adequacy of the hearing but hold that where a
candidate has reached the end of the battle and the whole poll is upset, he has a right to notice and to be heard, the quantum and quality being
conditioned by the concatenation of circumstances.
In view of the above precedents, we are of the opinion that filing of Form VII by the Registrar does not involve any civil consequences either
apparent or real. The rights of parties will have to be crystallised in forums other than the Societies Registration Act. Since the learned Counsel
submitted that Sections 34 and 36 of the Societies Registrations Act vest with the Registrar with certain powers, it is necessary to analyse them in
the context of a grievance projected by the appellant.
The Full Bench had completely dealt with the scope of Section 36 of the Societies Registration Act and we do not propose to go into the
interpretation of the said provision. In this case, the parties are in agreement that Section 36 is not attracted for any consideration in the present
appeal. In sofar as Section 34 of the Societies Act is concerned, it is necessary to reproduce the said Section for better appreciation:
Power of Registrar to call for information or explanation: (1) Where the Registrar, on perusal of any document which a registered society is
required to file with him under the provisions of this Act, is of opinion that any information or explanation is necessary with respect to any matter to
which such document purports to relate, he may, by order in writing, call on the registered society filing the document to furnish in writing such
information or explanation within such time as he may specify in the order.
(2) On receipt by the registered society of an order under Sub-section (1), it shall be the duty of all persons who are or have been its officers to
furnish such information or explanation to the best of their power.
(3) On receipt of such information or explanation, the Registrar, may annex the same to the original document filed with him and any additional
document so annexed by the Registrar shall be subject to the like provisions as to inspection and the taking of copies, as the original document is
subject.
A careful reading of the provision does not show that it either clothes the Registrar with any power of enquiry or determines the rights of
parties. It does not provide as suggested by the appellant that a decision taken by the Registrar will visit with civil consequences on the parties. As
rightly observed by the Division bench in Muralidaran''s case that it only involves an ministerial act and nothing more. If the appellant can be
described as the ""Form Filler"", then the Registrar u/s 34 will be ""Form Filer"". We are not persuaded to take any different view on Muralidaran''s
case. We do not find any inconsistency between the Full Bench decision and the subsequent decisions of the Division Benches.
Though the appellant contends that he need not be relegated to the suit which is already pending, we are unable to accept the said plea. It is for
the appellant to work out his legal remedies in a manner known to law. Suffice to say that the order of the Deputy Registrar impugned in the
original writ petition and not interfered with by the learned single Judge calls for any interference by this Court.
At the close of the submission, the learned Counsel for the appellant submitted that if the Registrar is a mere form filer then his Form also
should be directed to be taken on file and not kept under suspended animation. There is no impediment for granting such a direction. Hence, the
first respondent is directed to take the Form VII field by the appellant and the same be kept on record in relation to the appellant Society.
Except for the above observations, the Writ Appeal fails and accordingly, it is dismissed. Consequently, connected miscellaneous petitions are
also dismissed. However, there will be no order as to costs.