KERALA VISWABRAHMANA EDUCATIONAL TRUST v. STATE OF KERALA, INSPECTOR GENERAL OF REGISTRATION, AND DISTRICT REGISTRAR (GENERAL/SOCIETY REGISTRAR), THIRUVANANTHAPURAM

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940** **WP(C).No. 25504 of 2018** **----------------------** ## **PETITIONER:** ## **-----------** ***KERALA VISWABRAHMANA EDUCATIONAL TRUST, NO.A727/99, REGD. OFFICE AMC, 17-1872, MULLACKAL, ALAPPUZHA, REPRESENTED BY ITS PRESIDENT, N.M. SURESH, AGED 41 YEARS, S/O.MANIKANDAN ACHARI, RESIDING AT NADUVILETHADATHIL HOUSE, VETTIKKAL P.O., MULANTHURUTHY, ERNAKULAM DISTRICT.(CORRECTED)** **BY ADVS.SRI.CHERIAN GEE VARGHESE** **SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS** ## **RESPONDENT(S):** ## **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL, THIRUVANANTHAPURAM, PIN-695 001.** **3. DISTRICT REGISTRAR(GENERAL/ SOCIETY REGISTRAR, DISTRICT REGISTRAR(GENERAL) OFFICE, THIRUVANANTHAPURAM, PIN-695 001.** **BY GOVERNMENT PLEADER SMT.A.C. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **mbr/** **The address of the petitioner is corrected as “Viswabrahmana Samooham Kerala, State Committee, T-129/85” as per order dated 28.09.2018 in I.A.No.14547.** **Sd/Assistant Registrar** **WP(C).No. 25504 of 2018 (K) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **---------------------** |**EXHIBIT P1: TRUE COPY OF THE CERTIFICATE OF REGISTRATION**| |---| |**DATED 27.10.1999.**| |**EXHIBIT P2: TRUE COPY OF THE ORIGINAL BYE-LAW.**| |**EXHIBIT P3: TRUE COPY OF THE MINUTES OF THE 1ST PETITIONER**| |**DATED 18.1.2015.**| |**EXHIBIT P4: TRUE COPY OF THE MINUTES OF THE 1ST PETITIONER**| |**DATED 15.10.2017.**| |**EXHIBIT P5: TRUE COPY OF THE AMENDMENTS APPROVED BY THE**| |**DISTRICT REGISTRAR.**| |**EXHIBIT P6: TRUE COPY OF THE INTIMATION REGARDING CHANGE**| |**OF MANAGEMENT DULY ACKNOWLEDGED BY THE**| |**UNIVERSITY DATED 31.10.2017.**| |**EXHIBIT P7: TRUE COPY OF THE COMMUNICATION DATED 22.11.2017.**| |**EXHIBIT P8: TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT**| |**DATED 26.10.2017.**| |**RESPONDENTS' EXHIBITS:**<br>**NIL**| |**---------------------**| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 03.08.2018.** ## **ALEXANDER THOMAS, J. ======================== W.P(C)No. 25504 of 2018** **=========================** Dated this the 30[th] day of July, 2018 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - _“I) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding 3[rd] respondent to receive the annual returns submitted by the petitioner not withstanding pendency of any litigation._ - _II) Issue such other appropriate writ, order or direction which this Honourable Court may deem fit and just under the circumstances of the case.”_ 2. It is stated that the petitioner (Kerala Viswabrahmana Education Trust, No.A727/99), is a Society registered with the 3[rd] respondent by virtue of the enabling provisions contained in the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It is the case of the petitioner that the petitioner Society is being run in accordance with the provisions of the said Act and Rules framed thereunder and that its office bearers are holding office in terms of the provisions contained in the byelaws. But that the minority faction is raising objections against the functioning of the petitioner-Society on untenable grounds etc. Further that, the said rival faction has filed O.S.No.1439/2017 W.P(C)No. 25504 of 2018 2 before the Munsiff's Court, Thiruvananthapuram, alleging that the present office bearers are liable to be removed from office and for issuance of injunctions in that regard etc. But that the Civil Court has not so far issued any interim injunction order in favour of the plaintiff therein. That based on a complaint, said to have been given by the said rival faction, the 3[rd] respondent who is the notified Registrar has issued Ext.P-7 dated 22.11.2017 taking the view that further steps regarding the functioning of the Society can be taken up for consideration only after getting orders from the Civil Court which is considering O.S.No.1439/2017 etc. Further the petitioner would submit that they are obliged to submit their annual balance sheet regarding the income and expenditure of the petitioner-Society as per the mandatory provisions in Sec.13 and that they had taken steps for submission of their annual balance sheet in terms of Sec.13 of the abovesaid Act and that the 3[rd] respondent has now informed as per Ext.P-8 dated 26.10.2017 that the decision on the representation dated 26.10.2017 will be communicated in due course. It is the case of the petitioner that in the said representation dated 26.10.2017 referred to in Ext.P-8, the petitioner has requested the respondent to consider and act W.P(C)No. 25504 of 2018 3 upon the annual balance sheet regarding the audited income and expenditure pertaining to the petitioner-Society in terms of Sec.13 as otherwise steps to be taken to impose fine on the office bearers in terms of Sec.13(5) of the Act etc. It is in the light of these factual averments, the petitioner has filed the instant Writ Petition (Civil). 3. Sec.13 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (State Act XII of 1955) provides as follows: _“_ _**13. Annual Balance Sheet** .- (1) The governing body of every society shall at some date not later than eighteen months after the registration of the society and subsequently once at least in every calendar year lay before the society in general meeting a balance sheet and income and expenditure account for the period, in the case of the first account since the registration of the society and in any other case since the preceding account made up to a date not earlier than the date of the meeting by more than six months._ _(2) The balance sheet and income and expenditure account shall be audited in the case of the first balance sheet and account by an auditor appointed by the governing body and in the case of subsequent balance sheet and account, by an auditor appointed by the general meeting._ _(3) The balance sheet and income and expenditure account shall be signed by at least three memebrs of the governing body when the number of the governing body exceeds three and by all the members when the number is three._ _(4) After the balance sheet and income and expenditure account have been laid before the society at the general meeting, a copy of the balance sheet certified by at least two members of the governing body, shall be filed with the Registrar within twenty one days from the date of the general meeting._ _(5) If the requirements of this section are not complied_ W.P(C)No. 25504 of 2018 4 _with, the society and every member of its governing body, who knowingly and wilfully authorises or permits the default, shall be liable to a fine of twenty rupees for every day during which the non-compliance continues, subject to a maximum of two hundred rupees.”_ 4. It is also relevant to note that Sec.4 of the Societies Registration Act, 1860 (Central Act 21 of 1860), provides as follows: _“_ _**4. Annual list of managing body to be filed** .- Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Inspector-General of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.”_ 5. A Division Bench of this Court in the judgment in _**C.M.Z.Musliar v. Aboobacker**_ reported in 1998 (1) KLT 136 (DB) has dealt with the provisions contained in Sec.4 of the abovesaid Central Act and has held that when difference and dispute arises as to who are the members of the Governing Committee, the notified Registrar has discretion to conduct an enquiry and accept one list. It is profitable to refer to para.10 of the abovesaid Division Bench decision in **C.M.Z.Musliar's case** (supra) which reads as follows: _“10. In the aforesaid background, we have to find out the scope of S.4 of the Societies Registration Act. The filing of the returns with regard to the office bearers is for a purpose._ W.P(C)No. 25504 of 2018 5 _The mere fact that the section does not clearly state that the Registrar has got power with regard to the acceptance of the returns does not mean that he can accept any number of returns with regard to the same society. That will not serve the purpose of filing of the returns as contemplated. Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body.”_ 6. It appears that the Division Bench decision in **C.M.Z.Musliar's case** (supra) (in the judgment dated 08.12.1997 in W.A.No.1494 of 1997), was challenged before the Apex Court and the Apex Court in the judgment in _**A.P.Aboobaker Musaliar v. Distt. Registrar (G), Kozhikode and others**_ reported in (2004) 11 SCC 247=(2004)KHC 1830, has held as follows in para.3 thereof, which reads as follows: _“3. In the order passed by the District Registrar, he has indicated reasons for accepting the list of members of the governing body filed by E.K.Aboobaker stating that he was filing the lists for the earlier years and, if the appellant was claiming on the basis that he was competent to file, he has to establish the same. Learned Single Judge has taken the view that under Section 4, the District Registrar has no power to adjudicate the controversy. The Division Bench of the High Court, in the impugned judgment, has observed thus:_ _“Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted,_ W.P(C)No. 25504 of 2018 6 _because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body.””_ 7. Accordingly, it is ordered that the matter requires re-consideration at the hands of the 3[rd] respondent and will stand remitted to that authority for consideration of the plea of the petitioner afresh. The 3[rd] respondent will afford a reasonable opportunity of being heard to the office bearers of the petitionerSociety as well as their rivals/objectors mentioned in Ext.P-7 Sri.M.K.Gopalakrishnan and any other affected persons and then conduct a limited enquiry as contemplated in para.10 of the abovesaid Division Bench decision in **C.M.Z.Musliar's case** (supra) and in para.3 of the Apex Court decision in **A.P.Aboobaker Musaliar's case** (supra) and then may take a decision on the plea made by the petitioner for acceptance of the annual balance sheet and statement regarding audited income and expenditure accounts of the petitioner-Society, as envisaged in Sec.13 of the abovesaid Travancore-Cochin Act, without much delay, preferably within a period of 6 weeks from the date of production of a certified copy of this judgment. The petitioner's W.P(C)No. 25504 of 2018 7 contention that the Civil Court has not so far issued any interim injunction against the functioning of the present office bearers of the petitioner-Society and that therefore the 3[rd] respondent has no discretion to refuse to accept the annual balance sheet presented by the present office bearers of the Society in terms of Sec.13 of the Travancore-Cochin Act should also be specifically adverted to and considered by the 3[rd] respondent while taking the decision as aforestated. With the above observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/01.08.18