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TMI Blog2012 (5) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... framed by the respondent, Govt. of NCT of Delhi, at the time of formation of the society. The format of the affidavit required to be submitted by the promoter members reads as follows:- I, .s/o .. Resident of .. do hereby solemnly affirm and declare as under:- (1) That I am the President/Secretary of the Society named (2) That the desirous persons of the Society are not related to each other by way of blood relation or otherwise. (3) That the name of proposed Society is not identical or reassembles to any other registered/non-registered Society in our locality as per my knowledge. (4) That if name of this Society is found attracting the provision of Emblems Act of 1950 and/or identical and resembles closely to any other Society which is already registered under Societies Registration Act of 1860 in the NCT of Delhi and other law of land applicable to them then registration granted shall be deemed to have been withdrawn if the Society fail to change the name within the given time do so Registrar of Societies, Delhi. DEPONENT VERIFICATION Verified at Delhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancel the registration of the society by placing reliance on Section 21 of the General Clauses Act. 7. The petition is opposed by respondents No.2 to 6. It is submitted by learned counsel for the respondents No.2 to 6 that the Society had been in existence since the year 1991, and the said respondents were the office bearers of the said association. According to the said respondents, the petitioner along with others, have played fraud on the Registrar by getting the society registered under the Societies Registration Act. 8. Mr. Nanda, who appears on behalf of the Registrar, has filed the guidelines and legal opinion of the law department. Since the issue is legal, I have heard learned counsel for the parties and proceed to dispose of the present petition. 9. Having regard to the submissions of the learned counsel, I am of the view that the impugned order is patently illegal and cannot be sustained for various reasons. 10. A perusal of the Foreword (spelt by the respondent as Forward ) to the guidelines framed by the GNCTD shows that the basis on which the Govt. framed the said guidelines was that the Registrar of Societies in the Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety. The prescription incorporated in the Affidavit No.1 , which forms a part of the guidelines framed by the GNCTD to the effect that the desirous persons of the society are not related to each other by way of blood relation or otherwise , has no statutory or rational basis. The guidelines themselves have no statutory force, as it has not been shown that these guidelines have been framed by reference to any power vested in the GNCTD by virtue of the Act. 16. The said prescription, introduced in the aforesaid circuitous manner, even otherwise, appears to be arbitrary and lacks rationality. It seems to proceed on the assumption that members of the same family who are related by blood cannot ever get together to form a society, which is charitable in character, or which seeks to carry out activities of the kind described in section 20 of the Act. No basis for such an assumption is disclosed by the respondents. There is no nexus between the offending prescription and the avowed object sought to be achieved i.e. of allowing registration of charitable societies under the Act. The said prescription not only offends Article 14 of the Constitution of India, as it is unreasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere by any central Act or regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanction, and conditions (if any), to add, to amend, vary or rescind any notifications, orders, rules or byelaws so issued . 3. Hon ble Supreme Court, in case of Indian National Congress (I) vs. Institute of Social Welfare and Ors., (AIR 2002 SC 1258), has an occasion to examine application of section 21 with regard to power of Election Commission to deregister a political party. It was, inter alia, observed that section 21 of the General Clauses Act has no application where a statutory authority is required to act quasi judicially. Hon ble Court further observed vide para 34 and 34 of the judgment: 34. However, there are three exceptions where the Commission can review its order registering a political party. One is where in political party obtained its registration by playing fraud on the Commission, secondly it arises out of sub section (9) of section 29A of the Act and thirdly, any like ground where no enquiry is called for on the part of the Election Commission, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction can be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja Khawaja v. Secretary of State for Home Deptt., 1983 (1) All E R 765 that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law. In Pankaj Bhargava (AIR 1991 SC 1233) (supra) it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. 'If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope‟ [Craies on Statute Law, 7th Edition, p. 79]. Present day concept of fraud on statute has veered round abuse of power or malafide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. At this stage itself, I may take note of the recent decision rendered by this Court in Supreme Court Bar Association (Regd.) v. The Registrar of Societies Others, W.P.(C.) No.3260/2010 decided on 12.04.2012. In this decision, reliance was placed on the aforesaid decision of the Supreme Court in Indian National Congress (supra). The relevant extract from the decision in Supreme Court Bar Association (supra) reads as follows: 15. I also find merit in the petitioner‟s submission that there is no power vested in respondent no.1 to dissolve the society by resort to Section 21 of the General Clauses Act. In Indian National Congress (supra), the Supreme Court examined the question whether the Election Commission of India has the power to deregister a political party once it has been registered. The Supreme Court held that the Election Commission while discharging its function of granting registration to a political party discharges quasi judicial function and held as follows:- 37. It was next urged by the learned counsel for the appellants that the view taken by the High Court that by virtue of application of provisions of Section 21 of the General Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers of de-registration/cancellation of registration after enquiry by the Election Commission. We, therefore, hold that Section 21 of the General Clauses Act has no application where a statutory authority is required to act quasi-judicially. 16. As to what constitutes exercise of quasi judicial power was also considered by the Supreme Court in the following paragraphs:- 24. The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these: Where (a) a statutory authority empowered under a statute to do \any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and subject and (d) the statutory authority is required to act judicially under statute, the decision of the said authority is quasi-judicial. 25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not the case here. 17. In the present case, it would be seen that the ROS is obliged to ensure compliance of Sections 2, 3 and 20 of the Act while granting registration to a society. The ROS, therefore, exercises quasi judicial function while granting registration to a society. The said order‟ is neither an executive order nor a legislative order. By resort to Section 21 of the General Clauses Act, he cannot undo that registration. 24. The Court also took notice of Section 13 of the Act, which prescribes the method of dissolution of a society registered under the Act. The dissolution has to be voluntary in asmuch, as, 3/5th of the members of the society may determine to dissolve the same, whereupon it shall stand dissolved forthwith, or at the time when agreed upon. In the present case, the said procedure has, admittedly, not been adopted. The Court dealt with the said aspect in para 18 of its decision in Supreme Court Bar Association (supra) as follows: 18. There is yet another aspect which needs to be considered. Once the Act provides a procedure for dissolution of the society registered under the Act, it is only that procedure whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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