ATOWAR RAHMAN Vs. STATE OF ASSAM AND 6 ORS
LAWS(GAU)-2018-11-74
HIGH COURT OF GAUHATI
Decided on November 22,2018

Atowar Rahman Appellant
VERSUS
State Of Assam And 6 Ors Respondents

JUDGEMENT

Manojit Bhuyan, J. - (1.) Two questions of law have been referred by a Single Bench of this Court for a decision by a larger Bench. The matter is placed before this Full Bench, although the same could have been answered by a Division Bench of this Court. Be that as it may, the two questions are : (a) Whether registration of a Society by the Registrar of Firms & Societies, Assam under section 3 of the Societies Registration Act, 1860 cannot be cancelled once registered ? (b) Whether the decision rendered in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha and another vs. State of Assam and another, reported in, 2006 1 GauLR 395 to the above effect lays down the correct position in law?
(2.) To understand the circumstances under which reference has been made, only as an academic exercise, we may take notice of the following basic facts: (i) The writ petitioner i.e. Tapar Pathar Budhboria Saptahik Bazar Management Committee (in short the 'Committee') is a society registered under the Societies Registration Act, 1860 ( in short the 'Act') bearing Certificate of Registration (CoR) No.RS/Kam(R)/264/L/173 of 2017-2018, dated 6.11.2017, issued by the Registrar of Firms & Societies, Assam. This was in terms of Section 3 of the Act. (ii) The respondent no.7 in the writ petition i.e. Atowar Rahman lodged complaint petition dated 1.12.2017 with the allegation that the CoR had been obtained by misrepresentation. (iii) A hearing was held with participation of Atowar Rahman and the Secretary of the writ petitioner Committee. An order dated 25.1.2008 came to be issued by the Registrar of Firms & Societies, Assam, cancelling the registration, after hearing the parties in dispute and on consideration of the documents indicated in the said order. (iv) The aforesaid order dated 25.1.2018 prompted institution of the related writ petition. Legal point, inter-alia, urged was that the Act does not empower the Registrar of Firms & Societies, Assam to cancel and/or to withdraw the registration certificate. Violation of the principles of natural justice in the process was also urged. (v) While issuing notice of Motion in the writ petition on 19.3.2018, an interim order was passed by keeping in abeyance the operation of the impugned order dated 25.1.2018 until further order. While doing so, the Court took notice of the two-fold submissions made on behalf of the writ petitioner Committee - (i) that in the absence of any State amendment in the Act, no power vested on the Registrar to cancel the registration, (ii) that no power was also vested on the Registrar in view of the decision in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra). (vi) On 2.5.2018 the respondent no.7 i.e. Atowar Rahman filed application under Article 226(3) of the Constitution of India with a prayer for vacating the aforesaid interim order dated 19.3.2018. The said application received consideration on 20.7.2018. A view at variance was expressed in respect of the case in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra) by the learned Single Judge with the following observations : "On a perusal of the order dated 19.3.2018, it is seen that while passing the stay order, an earlier decision of this Court in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha and another vs. State of Assam and another, reported in, 2006 1 GauLR 395 was considered. On going through the said decision, it is seen that it was a case where certificate of registration was withdrawn by the Registrar which was interfered with by a Single Bench of this Court on two grounds. The first ground was that before withdrawing the registration no opportunity of showing cause was given to the petitioner. The second ground, which is relevant for the present case, was that the Societies Registration Act, 1980 does not contain any provision for cancellation of registration certificate. Learned Single Judge observed that while some states had brought in amendments in the said Act to provide for cancellation of registration, State of Assam has not done so. Therefore, it was held that cancellation of registration by the Registrar was beyond jurisdiction since there is no such provision in the Act. A careful perusal of the provisions of the Societies Registration Act, 1980 would go to show that Section 3 thereof vests the power of registration of a society on the Registrar. But there is no such provision in the Societies Registration Act, 1980 for cancellation of registration of a society once registered under the said Act. Relevant portion of the judgment in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra) reads as under :- "12. What is also important to note is that the Societies Registration Act, 1860, which embodies the provisions for registration of societies, is the enactment under which registration of the said Society took place. This Act does not contain any provision for cancellation of registration certificate. It may, however, be pointed out that some States have, in fact, made specific provisions for cancellation of registration of a society formed, constituted or registered under the Societies Registration Act, 1860. 13. In Assam, the State Government has not admittedly, made any provision with regard to cancellation and/or withdrawal of the registration of a society registered under the said Act. In the face of these facts there can be no escape from the conclusion that the act of the Registrar in passing the impugned order, dated 27.09.2004, is ex facie beyond his jurisdiction and cannot be sustained." While it is true that there is no specific provision under the Societies Registration Act, 1860 empowering the Registrar to cancel registration of a society after such registration, Sections 14, 16 and 21 of the General Clauses Act, 1897 may be looked into. As per Section 14, where any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion requires. Section 16 on the other hand says that power to appoint includes power to suspend or dismiss. The authority having the power to make appointment shall also have the power to suspend or dismiss any person so appointed in exercise of that power. On the other hand, as per Section 21, power to issue, would include power to add, amend, vary or rescind notifications, orders, rules or by laws. In Shree Sidhbali Steels Ltd. Vs. State of Uttar Pradesh reported in, 2011 3 SCC 193, Supreme Court considered the scope and ambit of Section 14 and 21 of the General Clauses Act, 1897. Supreme Court held that Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. Section 21 embodies a rule of construction. An administrative decision is revocable. The principle laid down in Section 21 is of general application. The power to rescind is inherent in the power to issue which is without any limitation or condition. Therefore, to my mind, even though there is no specific provision in the Societies Registration Act, 1860 empowering the Registrar to cancel a registration once granted, by application of the provisions contained in Section 14, 16 and 21 of the General Clauses Act, 1897, such a power is deducible. Rather it is implicit in the Registrar and has to be acknowledged, otherwise it will lead to a situation where registration of a society once obtained would be immune from interference by the registering authority under any circumstances, which cannot be the purport and object of any legislation. Considering the above, most respectfully I am of the opinion that the view take in Sadou Asom Puthi Prakasak Aru Bikreta Sangtha (supra) may not reflect the correct position in law and requires a relook. Therefore, the following two questions of law may require a decision by a lager Bench."
(3.) We have heard Mr. J. Ahmed, learned counsel for the applicant as well as Mr. D. Saikia, learned senior Additional Advocate General, Assam for the State respondents. Also heard Mr. K.N. Choudhury, learned senior Counsel for the respondent no.7 i.e. Tapar Pathar Budhboria Saptahik Bazar Management Committee.;


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