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East India Photographic Traders' Association and Ors. Vs. State of West Bengal and Ors. (05.05.1983 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberC.R. No. 9330 (W) of 1979
Judge
Reported inAIR1984Cal92
ActsWest Bengal Societies Registration Act, 1961 - Sections 10, 11, 22 and 22(1)
AppellantEast India Photographic Traders' Association and Ors.
RespondentState of West Bengal and Ors.
Appellant AdvocateD.P. Gupta, ;S. Pal and ;A.K. Roy, Advs.
Respondent AdvocateTapas Banerjee, ;Partha Sarathi Sengupta, Advs. (for No. 5) and ;P.K. Ghosh, Adv.;Anil Baran Chatterjee, Adv. (for Nos. 1 to 3)
DispositionPetition allowed
Cases ReferredChimanlal Trivedi v. M. N. Nagrashna
Excerpt:
- orderg.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.....
Judgment:
ORDER

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 theSociety had violated the provisions ofSection 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 ofthe 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 timebeing 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,

22. 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.

4. Mr. Gupta appearing with Mr. S. Pal for the petitioners has contended that under Section 22(1) west Bengal Societies Registration Act, the Registrar may, by written order, call on a Society to furnish in writing such information orexplanation as he may specify in the order in connection with the affairs of Society or any document filed by the Society under the Act and on receipt by the Society (of) inch an order under subsection (1), it will be the duty of the concerned officer to furnish such information or explanation. For failure to comply with the direction under Subsection (1) the defaulting officer shallbe punishable with fine. But there is so power under Section 22(1) Societies Registration Act, by which the Registrarof Societies can direct for change of name of the Society as has been done in the instant case. Mr. Gupta therefore submits that the impugned order directing the Society to change its name within two weeks is illegal and without jurisdiction on the face of it and as such the same should be quashed. He has also referred to Section 10, West Bengal Societies Registration Act, and has submitted that a society should not be registered under a name which is identical with, or too nearly resembles, the nameof any other society or any body corporate which has been previously registered or incorporated under the West Bengal Societies Registration Act or any other law for the time being in force. But if a society has in fact been registered under a name which is either identical or nearly resembles the name of any other society or any body corporate, then the registration of the Society does not ipso facto become illegal and inoperative and void in law. Once a society is registered, it continues as a registered society and it is only the State Government which is authorised under Section 11 to direct the 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. Mr. Gupta has contended that the said power of the State Government which will appear from Section 11, West Bengal Societies Registration Act, makes it quite clear that it is the State Government and not the Registrar which can direct for change of the name of the society under certain circumstances. Referring to Section 11, West Bengal Societies Registration Act, Mr. Gupta has contended that on analysis of Section 11, the following points emerge:--

(a) that the State Government must form an opinion that the name of thesociety is identical with or too nearly resembles the name of any other society or body corporate having been previously registered or deemed to have been registered and such society or body corporate continues to exist;

(b) the State Government, and not the Registrar, can direct for change of the name of a society and alter its memorandum;

(c) such power is also discretionary and as such contemplates a hearing;

(d) the time period for effecting the change of a name of the society and altering its memorandum is three months from the date of the order of the State Government or such longer period as the State Government may think fit to allow,

5. Mr. Gupta contends that the condition precedent for exercising the power under Section 11 by the State Government is that the State Government must form an opinion that any other society or a body corprate has a name either similar or closely resembling a registered society or a body corporate and that such other society or corporate body continues to exist. Before exercising the power under Section 11. Societies Registration Act, by the State Government, an opinion is to be formed factually and in the absence of formation of any opinion, no action under Section 11 can be taken even by the State Government. Mr. Gupta contends that as a matter of fact, the State Government has not formed any opinion whatsoever and the State Government has appeared in the instant Rule but it has also not contended that it had formed such an opinion at any point of time. In the circumstances, it is not necessary to enquire as to whether or not on the existing facts such opinion should have been or must have been formed by the State Government. Mr. Gupta has also contended that exercise of power by the State Government under Section 11 of the said Act is not a must or as a matter of course and the expression 'may' entirely indicates that such power is discretionary with the State Government and as the power is discretionary and is dependant on formation of certain opinion and existence of certain facts, an opportunity of being heard and compliance of the principles of natural justice are required to be followed before any action is taken by the State Government under Section 11 of the Act. Mr. Gupta submits that theState Government after getting the views of the Society may be satisfied that although the name of the society is identical with or it closely resembles the name of any other society or body corporate, it is not necessary to change the name of a society and as such it may not direct for such change. The State Government may also feel, even if it decides that the name of a society should be changed, that sufficiently long time should be given to the Society to change its name or to alter its memorandum of association. For taking a decision under Section 11, various factors are required to be taken into consideration by the State Government. He submits that in the instant case, the State Government may not be inclined to direct the change of the name of the society in view of the fact that respondent 5 Company is practically a defunct company and does not carry its business. It is, therefore, not possible to presume that in the facts of the case, the State Government must have taken the decision that the petitioner society should change its name. Mr. Gupta has also submitted that admittedly the State Government has not asked the petitioner society to show any cause and has also not given to the petitioner society any opportunity of being heard. Hence, the State Government also cannot pass any order for change of the name of Society without giving the Society a reasonable opportunity of being heard. In support of this contention, Mr. Gupta has referred to a decision of the Supreme Court made in the case of S. L. Kapoor v. Jagmohan reported in : [1981]1SCR746 . In the said decision, the Supreme Court has considered the provisions of Sec. 16 and Section 238 (1), Punjab Municipal Act. Section 238 (1) deals with the supersession of a Municipal Committee and opportunity of being heard has not been expressly given in the said section, but in Section 16 of the said Act which deals with the qualification of individual member, such an opportunity has been expressly provided for. The Supreme Court has held that merely because an opportunity is expressly provided for in Section 16 of the Act which deals with disqualification of an individual member and not so provided in Section 238 (1) it cannot be inferred that the principle 'audi al-teram partem' was excluded from Section 238 (1). The Supreme Court has further held that the requirements of natural justice are met only if opportunity to represent is given against tha proposed action. The person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. Mr. Gupta has also referred to another decision of the Supreme Court made in the case of Swadeshi Cotton Mills v. Union of India : [1981]2SCR533 . In the said decision also, the Supreme Court has also approved its earlier decision made in S. L. Kapoor's case. In the Swadeshi Cotton Mill's case, the Supreme Court has quoted with approval the observation in Wade's Administrative Law wherein the decision made in the case of General Medical Council v. Spackman reported in (1955) 1 KB 24 has been referred to. It has been held in the said English decision that it is vital that the procedure and merits should be kept strictly apart since otherwise merits may be prejudged unfairly. Mr. Gupta has contended that for deciding the propriety of an action, the Court must see as to whether or not the fundamental principle of 'audi al-teram partem' has been followed and it is not necessary to consider the merits for an answer that such principle, in the facts of the case, was not required to be followed. Mr. Gupta contends that formation of opinion by the State Government is a condition precedent for exercising a power under Section 11 of the said Act. Section 11 postulates two things viz. existence of certain facts on the basis of which the opinion can be formed and actual formation of such opinion. Mere existence of the materials on the basis of which an opinion can be objectively formed is not enough and actual formation of opinion is necessary. In support of his contention Mr. Gupta has referred to a decision of the Supreme Court made in the case of Calcutta Discount Co. v. Income-tax Officer, reported in : [1961]41ITR191(SC) . Referring to the expression 'reasons to believe' appearing in Section 34, I.-T. Act, the Supreme Court has held that the said expression postulates two things -- (a) belief, and (b) existence of reasons for that belief. Mr. Gupta has also contendedthat whenever any authority acts without jurisdiction and passes an order without jurisdiction, then a manifest injustice is caused by assumption of power without jurisdiction. The Court should not encourage such assumption of power without jurisdiction by which the right of a person is affected. Mr. Gupta has also contended that in the instant case, the Registrar of Societies has passed the impugned order directing petitioner 1 Society to change its name within two weeks although petitioner 1 Society having raised some preliminary objections about the validity of the said notice under Section 22 had prayed for more time to give further representation in the matter. Even assuming that the contentions raised by the petitioner Society or its Advocates were not acceptable to the Registrar of Societies, the Registrar of Societies had a bound en duty to grant time to the petitioner society as prayed for or to inform the petitioner Society that prayer for further time should not be given and the petitioner society must, therefore, furnish its representation. In the instant case, the Registrar of Societies passed the ex parte decision purporting to be under Section 22(1), West Bengal Societies Registration Act when on the face of the said section, the impugned order could not have been passed by the Registrar of Societies. As the entire order is per se illegal on the face of it, the same should be quashed. Mr. Gupta, in his fairness, has however submitted that the petitioners have also prayed for a writ of mandamus directing the Registrar of Companies and Union of India to strike off the name of respondent 5 Company on certain allegations but if this Court is of the view that the allegations of the petitioners about the activities of respondent 5 Company are highly disputed and in deciding the propriety and validity of the impugned orders passed by the Registrar of Societies, the other action under the Companies Act as prayed for should not be considered, then the Court should allow the prayer of the petitioners to quash the impugned orders passed by the authorities under the Societies Registration Act and leave the question of cancellation of the registration of respondent 5 Company open.

6. Mr. Srngunta, the learned Counsel appearing for respondent 5 Company has submitted that under Section 10, WestBengal Societies Registration Act, no society can be registered if the name of the society is identical with or it too merely resembles the name of any other society or body corporate which had been previously registered or incorporated. The petitioner society has practised a fraud upon the authorities of the Societies Registration Act in not disclosing the fact that a registered company in the same name was in existence at the lime of making the application by the Society for registration. One of the promoters of the said registered company and the said Society was a common person and as such it cannot be contended by the petitioner Society that the petitioner Society was not aware of the existence of the said registered company. He contends that under Section 10, the petitioner society could not have been registered if the said facts were known to the authorities of the Societies Registration Act. In the facts of the case, the State Government cannot reasonably take any other view. Under Section 11, Societies Registration Act, the State Government has power to direct the change of the name of the petitioner Society in view of the fact that such registration was made illegally and by practising fraud and but for such fraud the registration was not permissible under Section 10, Societies Registration Act. Mr. Sengupta contends that the word 'may' appearing in Section 11, Societies Registration Act, cannot be held to be absolutely discretionary with the State Government. He submits that even assuming that in some special circumstances, the alteration may not be deemed to be necessary, such circumstances are not existing in the facts of the case and the impugned action will be the inevitable result. Mr. Sengupta has, however, submitted that the Registrar of Societies has no power to direct for a change of the name of the Society under Section 22(1) and such action can be taken only by the State Government under Section 11 of the Act. But in the facts of the case, the State Government had no other option but to direct for change of the name of the Society and as actual prejudice has not been caused to the petitioners by passing the impugned orders, no action need be taken by the writ Court which is also a Court of equity. Referring to the principle of natural justice, Mr. Sengupta has con-tended that the rule of natural justice should not be stretched too far and the benefit of the rule of natural justice should not be allowed to a party who intends to derive an undue benefit by taking refuge to the principles of natural justice. For this contention, Mr. Sengupta has referred to an English decision made in the case of R. V. S. Secy. of State for Home Department Exparte Mughal reported in 1973 (3) All ER 796. Lord Justice Denning has held in the said decision that the rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences. A conscious wrong-doer will not be heard for complaining about non observation of the 'audi alteram patter'. Mr. Sengupta has also referred to a decision of the Supreme Court made in the case of H. C. Sarin v. Union of India reported in : AIR1976SC1686 where the observation of Lord Justice Denning was quoted with approval. Mr. Sengupta has also referred to a decision of the Supreme Court made in the case of P. Kasilingam v. P. S. G. College of Technology reported in : (1981)ILLJ358SC . In the said decision the Supreme Court has highlighted that for exercise of the discretionary power under the writ jurisdiction, there must be manifest injustice coupled with excess of jurisdiction or want of jurisdiction or refusal to exercise jurisdiction and/or there should be error apparent on the face of the record. Mr. Sengupta has submitted that, in the facts of the case, the ultimate direction for changing the name of the Society is got to be made and as such no manifest injustice has been caused to the petitioner for which an interference by the writ court is called for. Mr. Sengupta has also contended that under Section 22(1) of the West Bengal Societies Registration Act, the Registrar may ask for some information in connection with the affairs of the Society or in connection with any document filed by the Society under the Societies Registration Act. For the purpose of registration of the Society, the Memorandum of Association is required to be filed by the applicant society and the name of the society is required to be disclosed. The Society filed such document for getting it registered. Hence the information relating to the name of the Society can be called for under Sec-tion 22(1) of the Societies Registration Act, Referring to the decision made in the S. L. Kapoor's case : [1981]1SCR746 (Supra) since relied on by Mr. Dipankar Gupta. Mr. Sengupta has drawn the attention of the Court to paragraph 17 of the said decision. The Supreme Court has observed in the said paragraph that if on indisputable facts, one conclusion can be reached and one penalty can be passed, then no writ for non observance of the natural justice should be issued because such observance of the natural justice will be an exercise in futility. He has contended that as the registration of the Society was illegal under Section 10 of the said Act and as under Section 11 of the said Act, the State Government is under an obligation to direct for change of the name of the Society, no useful purpose will be served by giving the petitioner an opportunity of being heard. Hence, no interference by the writ court is called for. Mr. Sengupta has also referred to a decision of the Supreme Court made in the case of Punjab Beverages Pvt. Ltd. v. Suresh Chand reported in : (1978)IILLJ1SC . In the said decision, the Supreme Court has held that in the facts of the case under consideration of the Supreme Court, there has been contravention of the provisions of Section 33(2)(b), Industrial Disputes Act. But such contravention of Section 33(2)(b) did not have the effect of rendering the impugned order of dismissal invalid and the workmen were not entitled to maintain application for determination and payment of wages under Section 33C(2). Although the Supreme Court was of the view that the workmen were not entitled to maintain application for determination and payment of wages under Section 33C(2), the Supreme Court refused to exercise its extraordinary jurisdiction under Article 136 of the Constitution on the ground that the Supreme Court was not bound to set aside the order of the Labour Court directing the appellant to pay certain sums unless the justice of the case so required. Hence, even though Labour Court was not right, the Supreme Court was not inclined to exercise the overriding jurisdiction under Article 136 of the Constitution to set aside the order of the Court. Mr. Sengupta has contended that the State Government is also a party to this writ pro-ceeding and the State Government is not opposing the impugned order and is not contending that the State Government is inclined to take any contrary view or that it, feels that the petitioner Society should he given a further chance to represent. Mr. Sengupta has also contended that it is true that under Section 11 of the Act at least three months' time is required to be given to effect change of the name of the petitioner Society but the said order was passed quite a long time back and several years have elapsed between the impugned order and the hearing of this Rule. Accordingly, the petitioners have got sufficient time to effect the change of the name of the Society. Mr. Sengupta has also contended that the time to effect change is not the essence for upholding the impugned order. There is no allegation by the petitioners that because of the shortness of time, the direction of changing the name could not be complied with. He, therefore, submits that the writ jurisdiction being also a discretionary jurisdiction should not be exercised when the petitioners have not come with clean hands and they are not entitled to any relief in equity.

7. Mr. Gupta, the learned Counsel for the petitioners, in reply to the aforesaid contention of Mr. Sengupta, has submitted that when an authority has passed an order without jurisdiction a manifest injustice is caused by such assumption of authority without jurisdiction. He has also referred to the decision of the Supreme Court made in M/s. Punjab Beverages Pvt. Ltd. : (1978)IILLJ1SC (Supra) since relied on by Mr. Sengupta and has submitted that the said decision is distinguishable on the facts of the case. He has submitted that the Supreme Court has held in the said decision that although there has been contravention of Section 33(2)(b), Industrial Disputes Act, in dismissing the workmen, but such contravention did not render the dismissal void. Hence the Supreme Court treated the award of certain sums as wages by the Industrial Court, as compensation and only in such circumstances, the Supreme Court held that no interference under Article 136 was called for. Mr. Gupta has also contended that in the instant case, the petitioners are contending that respondent 5 Company is practically defunct. The factual correctness of such contention can beascertained after causing enquiries and if the representation of the petitioners that no action under Section 11, Societies Registration Act, is called for, is accepted by the State Government, there will be no occasion for change of the name when the authorities under the Societies Registration Act have passed the impugned orders completely without jurisdiction and in gross violation of the principles of natural justice, the Court should quash the impugned orders and should not entertain the plea that the proposed action will be the inevitable consequence and as such the impugned orders passed without jurisdiction should be allowed to remain in force.

8. After considering the respective contentions made by the learned Counsel appearing for the parties, it appears to me that the Registrar of Societies had no jurisdiction whatsoever to direct for change of the name of the Society and the Registrar passed the impugned orders absolutely without jurisdiction and such orders are illegal on the face of them. That apart, the Registrar of Societies and/ or the Additional Registrar of Societies had also failed to give any reasonable opportunity to the petitioners to make representation. The petitioner Society in reply to the letter of the Registrar of Societies had pointed out some irregularity and questioned the validity of the said memo but had prayed for further time to give an effective representation. The Registrar and/or Additional Registrar of Societies did not intimate the petitioners and/or the Advocates of the petitioners that no further time should be given to the petitioners to make representation and an ex parte decision was taken by the said respondents directing the Society to change its name within two weeks. Such action is wholly unjust and improper even if the said respondents had an authority to pass the impugned order. It is true that the Constitutional Writ Jurisdiction is also a discretionary jurisdiction and the writ Court is not always bound to issue writs on the score of infraction of any statutory provisions or legal right even when actual prejudice or injustice has not been caused by such infraction. The Supreme Court has held in the case of A .M. Allison v. B. L. Sen reported in : (1957)ILLJ472SC that exercise of jurisdiction under Article 226 is not as a matter of right and in an appropriatecase the writ Court may refuse interference although the petitioner establishes that there has been infraction of a legal provision. The said decision of the Supreme Court has also been further affirmed in a subsequent decision of the Supreme Court made in the case of Bal-vantrai Chimanlal Trivedi v. M. N. Nagrashna reported in : (1959)IILLJ837SC . In the instant case, however, it does not appear to me that the Court should refuse to exercise its constitutional writ jurisdiction simply on the ground that the petitioner Society was not entitled to be registered under Section 10 of the Act and it should not have applied to get the Society registered in its present name in view of the fact that the promoters of the Society were aware at the time of making the application for registration that a registered company had been existing in the same name. In my view, the Registrar of Societies, after causing enquiries under Section 22(1), should have intimated the State Government that the petitioner Society got itself registered by deliberately not disclosing the fact that in the same name, a registered Company was in existence so that the State Government could have taken appropriate action under Section 11, Societies Registration Act. But instead of doing that, the Registrar of Societies and/or the Additional Registrar of Societies hastened to pass the impugned orders without any jurisdiction whatsoever and in doing so, they did not also give reasonable opportunities to the petitioners to show cause. It may be noted in this connection that the petitioners have contended that there is no necessity for directing the petitioner Society to change its name because respondent 5 Company is practically defunct It is not necessary to ascertain the correctness of the said contention for disposing of this Rule but it appears to me that in the facts of the case, it will not be desirable to refuse relief by the writ Court on the ground that under Section 11 of the Act, the State Government should have no other alternative but to direct for change of the name of the Society. I am, however, inclined to accept the contention of Mr. Sengupta that in the absence of special circumstances under which a change of the name of the Society may not be expedient or necessary, the State Government is ordinarily under an obligation to direct for change of the name of theSociety if the name of the Society is identical with or closely resembles the name of any other Society or a body corporate in existence more so when the Society gets itself registered knowing it fully well that another Society or Corporate Body in similar name or in a closely resembling name was in existence. Unless for some special circumstances, change of the name of the Society is not deemed expedient and necessary the State Government cannot ignore the mandatory provision of Section 10 West Bengal Societies Registration Act while exercising power under Section 11 of the Act. It may be noted that Section 10 has been incorporated so that people dealing with a particular Society is not misled by the name of any other Society or a body corporate having identical name or a name closely resembling with the name of the Society in question and in my view Section 10 has been incorporated to pre-| vent passing of a Society in the name of any other Society or a body corporate having identical or similar name. If, however, the nature of activities or business of a Society in question and such activities and business of other society or corporate body having identical or closely resembling name are entirely different or such other Society or the body corporate are defunct for the time being or in view of the place of business and for some other similar facts there is hardly any chance of such Society or body corporate of being identified with the Society in question, then the change of the name may not be deemed expedient and necessary. The State Government, in such circumstances will be justified in not taking any action under Section 11. Mr. Gupta is justified in his contention that a Society registered in contravention of Section 10 is not ipso facto non est in the eye of law and the registration of the society is also not ipso facto invalid or void Such illegal or irregular registration in contravention of Section 10 calls for an action under Section 11 by the State Government,

9. In the circumstances, the Rule succeeds and the impugned orders are set aside but there will be no order as to cost. This decision, however, will not preclude respondents 2 and 3 to take appropriate action in accordance with law under the Societies Registration Actagainst the petitioner society and/or to inform the State Government about the registration of the petitioner Society with a name identical with or closely resembling with the name of respondent 5 Company.


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