G.N.Ray, J. -
(1.) In this Rule, petitioner 1, East India Photographic Traders Association and the petitioner No. 2, Sri Saral Kumar Dutta and petitioner 3, Sri Hem Ranjan Bose respectively the President and the Secretary of the said East India Photographic Traders' Association have challenged a notice dated 25-5-1979, being Annexure 'D' to the writ petition, the order dated 15th/ 16th June, 1979 and communication dated 9-7-1979, being Annexures 'F' and 'H' respectively to the writ petition. By notice dated 25-5-1979 (Annexure 'D') the Registrar of Firms, Societies and non-Trading Corporations, West Bengal called upon the Secretary, East India Photographic Traders' Association under Section 22 (1) West Bengal Societies Registration Act, to explain within two weeks from that date the circumstances under which the said Society was registered after about ten years when a Company under the name and style of East India Photographic Traders' Association Limited was registered and one Sri Gopinath Chatterjee, a promoter of the said Company, with full knowledge of the existence of the said limited company, subscribed for the registration of petitioner 1 Society having a name identical with that of the said registered Company The Society was also asked to explain at to why the Society had violated the provisions of Section 16 west Bengal Societies Registration Act by getting the Society registered under the said name which was identical with the name of a registered Company. By Memo dated 15th/16th June, 1979, the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal directed the Secretary of the East India Photographic Traders' Association to change the name of the Society and alter its memorandum within two weeks from the date of the receipt of the said Memo in view of the fact that in getting the Society registered under the said name, the Society had knowingly contravened the provisions of Section 10 West Bengal Societies Registration Act. By the Memo dated 9-7-1979 which is Annexure 'H' to the writ Petition, the Registrar of Societies, Firms and Non-Trading Corporations, West Bengal informed M/s, Khaitan & Co. viz., the Solicitors and Advocates of the petitioners that the petitioner society had contravened the provisions of Section 10 of the Act deliberately and the said Society had ample time and scope to change the name of the Society during the last ten years, but the Society was reluctant to do the same. The Registrar also informed the said Advocates that the Registrar was not empowered under the Act to allow extension of time as prayed for. The petitioner contends that as far back as in 1958, an unregistered Society in the name of East India Photographic Traders' Association was formed in Calcutta and the said Association consi-sisted of members who engaged themselves in the business of dealing in photographic material." and protographic trade and profession in the eastern part of India comprising West Bengal, Bihar, Orissa, Eastern U. P., Assam, Manipur, Tripura and subsequently Nagaland and Sikkim. After change of policy by the Government by canalising the import and distribution through the State Trading Corporation of India, the said Association approached the Government of India in the matter of distribution of the imported materials and it is the case of the petitioners that it was decided and agreed that the said imported materials would be distributed in the eastern region through the said Association and since January, 1959 the said Association started distributing the materials exclusively and regularly amongst the members of the said eastern region. In three other regions of the country viz., in western, northern and southern regions, similar Associations had also been formed and the existing Regional Associations also formed a Federation known as "All India Fedration of Photographic Trades Association". The petitioners contend that a minority group of the said Association tried to get the Association registered under the Companies Act, 1956 but in view of the objection raised by the Registrar of Companies such registration was not made and the Registrar of Companies suggested certain changes and/or amendments in the proposed Memorandum and Articles of Association. But some time in or about 1964, one Sri L. C. Sett (Senior) and some other members of the Association promoted a company by the same name viz. East India Photographic Traders' Association Limited, namely, respondent 5 in the instant Rule and the said Company was also registered under the Companies Act. The petitioners contend that the said Company, since its incorporation, did not carry on any activity whatsoever and had not implemented and/or taken any step to implement the objects mentioned in its memorandum of Association. The petitioner Association, however, got itself registered on 3-7-1974 under the West Bengal Societies Registration Act, 1961 and after the registration, the petitioner Society took over the entire assets and liabilities of the Association and continued the distribution of imported materials. The petitioners contend that by the impugned Memo dated 25-5-1979 issued by the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal, the petitioner Society was called to explain the circumstances under which the Society had violated the provisions of Section 10, West Bengal Societies Registration Act. The petitioners contend that the said Memo must have been issu-ed at the instance of respondent 5. The petitioner Society, however, by its letter dated 6-6-1979, requested the Registrar of Firms, Societies and non-Trading Corporations to give the Society time till middle of July. 1979 for replying to the issues raised in the aforesaid communication dated 25th May, 1079 but without giving the petitioner Society any further time and without replying the letter dated 6-6-1979, the Additional Registrar of Societies by the impugned order and/ or direction dated 15th/16th June, 1979 inter alia held that the petitioner Society had contravened the provisions of Section 10 of the said Act and the Additional Registrar also directed the petitioner Society to change the name of the Society and alter its memorandum within two weeks from the date of the said impugned order or notice. As aforesaid, M/S. Khaitan & Co., Advocates of the petitioners, pointed out that the said impugned order dated 15th/16th June, 1979 was illegal and requested respondent 2 to withdraw and/or cancel the same, but instead of cancelling the said Memo, the Additional Registrar of Societies by his letter dated 9-7-1979, informed the said Advocates that the said letter of the Advocates was written on misconception and there was no power to extend the time. The petitioners have also contended that as respondent 5 Company had not been carrying on its business, a declaration should be made by this Court that the said Company has become defunct and respondents 4 and 6 viz., the Registrar of Companies, West Bengal and Union of India should be directed to strike off the name of respondent 5 from the Register of Companies by invoking Section 560, Companies Act.
(2.) Respondent 5, Company is opposing the prayers of the petitioners and an affidavit-in-opposition has been filed by respondent 5 denying the allegations made by the petitioners. It has also been categorically denied that the Company was defunct and it has opposed the contention of the petitioners that the name of the Company should be struck off from the Register of Companies. An affidavit-in-opposition has also been filed on behalf of the Registrar of Firms, Societies and Non-Trading Corporations, West Bengal.
(3.) For the purpose of appreciating the contentions of the respective parties to the Rule, it is necessary to refer to certain provisions of the West Bengal Societies Registration Act, 1961. The provisions of Sections 10, 11 and 22 are set out here-under:--
"10. Name of Society -- No Society shall be registered under a name which is identical with or too nearly resembles, the name of any other society or any body corporate which has been previously registered or incorporated under this Act or any other law for the time being in force, as the case may be or is deemed to have been registered under this Act. 11. State Government may direct change of name:-- (1) If a society is registered under a name or alters its name to another name which, in the opinion of the State Government, is identical with, or too nearly resembles, the name of any other society or body corporate which, having been previously registered or incorporated under this Act or any other law for the time being in force, or being deemed to have been registered under this Act, continues to exist the State Government may, by order made in this behalf direct such society to change its name and alter its memorandum within three months from the date of the order or such longer period as the State Government may think fit to allow.
(2) No change of name shall affect the rights and liabilities of a society or any legal proceedings by or against the society. (3) In case of non-compliance with an order under Sub-section (1), every officer in default shall be punishable with fine which may extend to twenty rupees for every day until the order is complied with, Power of Registrar to call for information or explanation-
(1) The Registrar may, by written order, call on a society to furnish in writing such information or explanation within such time, not being less than two weeks from the date of receipt of the order by the Society, as he may specify in the order in connection with the affairs of the Society or any documents filed by the Society under this Act. (2) On receipt by the Society of an order under Sub-section (1), it shall be the duty of the officer concerned to furnish such information or explanation. (3) For failure to comply with an order under Sub-section (1), the officer in default shall be punishable with fine which may extend to twenty rupees for every day during which the failure continues.;