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Kerala Bar Hotels Association, Kochi, Represented by Its General Secretary v/s The District Registrar (General), Kottayam

    WP(C). No. 29444 of 2018

    Decided On, 06 September 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    For the Appellant: S. Sreekumar, Sr. Advocate, Thomas. P. Kuruvila, Advocate. For the Respondent: A.C. Vidhya, Government Pleader.



Judgment Text

1. The petitioner - Association is aggrieved by the impugned Ext.P-5 proceedings No.S1-1759-16 dated 23.7.2018 issued by the respondent-District Registrar (General), Kottayam, whereby the request made by the petitioner-Association for registering the change of name of the Association has been rejected on the ground that the name of the Society once registered under the enactment concerned cannot be changed as there are no provisions in that regard in the said Act.

2. The main prayers in this Writ Petition (Civil) are as follows:

'(i) Call for the records leading to Exhibit.P5 and quash the same by a writ of certiorari or such writ, order or direction;

(ii) issue a writ of mandamus or other writ order or direction directing the respondent to take necessary action to change the name of the petitioner association from 'Kerala Bar Hotels Association' to 'Federation of Kerala Hotels Association' and issue necessary certificate within a time limit to be fixed by this Hon'ble Court.'

3. Heard Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Thomas P.Kuruvila, learned counsel for the petitioner-Association and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondent-District Registrar (General), Kottayam.

4. The petitioner is an Association registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and the Rules framed thereunder and the said registered Association is having Ext.P-1 registered byelaws which regulates its functioning. The petitioner- Association has been registered for the purpose of promotion of Hotel Industry and Tourism in the State. According to the petitioner, in view of the Government policies and the change in business scenario, the members of the petitioner-Association felt the need to change the name of the petitioner-Association. Accordingly, an Extra Ordinary General Body of the Association was duly called, in accordance with Ext.P-1 bye-laws and the said Extra Ordinary General Body of the Association in the meeting held on 8.7.2018 has unanimously agreed to the change of name of the petitioner-Association from 'Kerala Bar Hotels Association' henceforth to be known as 'Federation of Kerala Hotels Association' and the said meeting has duly approved the amendment of clause (1) of Ext.P-1 bye-laws, etc. Pursuant to the same, the President of the petitioner-Association had approached the respondent-District Registrar (General) by submitting request in Ext.P-3 letter dated 11.7.2018 for formal approval of the amendment of the bye-laws regarding the abovesaid change of name of the petitioner. The respondent has now issued the impugned Ext.P-5 proceedings dated 23.7.2018 rejecting the abovesaid request on the sole ground that there are no explicit enabling provisions in the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, for permitting change of name of an Association, once registered. It is this proceedings at Ext.P-5 that is under challenge in this Writ Petition.

5. It is common ground that there are no enabling provisions either in the Travancore Cochin Literary, Scientific and Charitable Societies Act, 1955 and the Rules framed thereunder which regulate or envisage modalities and procedure for change of name of an Association/Society once it is registered. So also, it is not in dispute that Ext.P-1 registered bye-laws of the petitioner-Association also do not contain any explicit provisions which regulate the procedure to be adopted for change of name of the petitioner-Association. However, it is explicitly provided in the concluding portion of clause (17) as well as clause (42) of Ext.P-1 bye-laws that matters like amendment of the constitution/bye-laws of the Association/Society, etc., would require the convening of a General Body Meeting of the Association with special notice and the proposal passed must be after securing 2/3 majority of those present. The concluding portion of clause (17) and clause (42) (a) of Ext.P-1 bye-laws read as follows:

"17. 'MALAYALAM'

Sec.22 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which deals with amendments to memorandum or the rules and regulations of a society, reads as follows:

'22. Amendments to memorandum or the rules and regulations of a society.- (1) When any amendment is made in the provisions of the memorandum or the rules and regulations of a society, a copy of the resolution effecting the amendment, certified to be a correct copy by not less than three members of the governing body shall be filed with the Registrar within fourteen days from the date of the general meeting at which the resolution was passed.

(2) If delay is made in so filing with the Registrar a copy of the resolution mentioned in sub-section (1) of this section, the society and every member of its governing body shall be liable to a fine not exceeding twenty rupees for every day during which the default continues, subject to a maximum of two hundred rupees.'

6. Prima facie, it appears that as evident from the materials produced in this Writ Petition, like Exts.P-2 & P-3, would clearly show that the abovesaid procedure contemplated in the above bye-laws for amendment of the bye-laws/constitution of the petitioner-Association has been strictly adhered to and the proposal had unanimously passed in the Extra Ordinary General Body Meeting of the petitioner-Association. It is to be borne in mind that Article 19 (1)(c) under Part III of the Constitution of India guarantees that all citizens shall have the right to form Association or unions, etc. Therefore, the formation of a society with the consent of the individuals concerned would form part of the core of the fundamental right guaranteed under Article 19(1)(c) of the Constitution in the matter of formation of Association/Union, etc. The said fundamental right to form Association is subject to the restriction contained in clause (4) of Article 19 which states that nothing in sub-clause (c) of Article 19(1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. Therefore, the parameters like the interests of the sovereignty and integrity of India or public order or morality alone could be the basis for reasonably restricting the right guaranteed under Article 19(1)(c). When that is the basic position in constitutional law, it is only to be held that the persons who voluntarily form the Association will also have inherent right and prerogative to name their Association in the manner they deem fit and proper. So also, this will not imply that the name once adopted initially in respect of an Association, which is registered, cannot be subsequently changed. Once the body/Association/Society is registered under the provisions of the Act like the present enactment, then at best, the statute or the functionaries thereunder could regulate the aspects like the procedure to be adopted for such scenarios and such procedural prescription should be reasonable, fair and proper and should be only for the purpose of effectuating the proper procedure in such aspects. Of course, there could be situations where attempts may be made to adopt the name of an already well established body which could create confusions regarding the identity of such Associations and power could be conceded to the regulatory authorities to remedy such mischievous attempts. No such allegations arise in the instant case.

7. In the absence of any specific procedure contemplated in the Act and the Rules, at best, it will be within the domain of the Association/Society to frame necessary bye-laws to regulate such procedure and if such procedure has been prescribed in the registered byelaws/ Memorandum of Association, etc., which regulates the change of name of the body, then such specific provisions should also be adhered to. If any such provisions are incorporated in the Act and/or the registered bye-laws, the procedure prescribed should be certainly adhered to before approval of such amendments could be considered by the statutory Registrar. In such cases, certainly the statutory functionary like the Registrar appointed under the provisions of the regulating Act will have the limited jurisdiction to ascertain whether the prescribed procedure in the Act and the bye-laws and Rules, etc., have been followed in the matter of such amendment.

8. In the instant case, the procedure has been prescribed in Ext.P-1 registered bye-laws in the manner mentioned herein regulating the amendment of bye-laws of the body. It is the specific plea made by the petitioner that the said procedure has been strictly followed and the General Body called for such specific purpose has unanimously passed such resolution for amendment for change of name of the petitioner-Association. However, it is to be noted that Sec.22 provides that when amendment is made in the provisions of the memorandum or rules of the society, then a copy of the resolution effecting the amendment, certified to be a correct copy by not less than 3 members of the governing body shall be filed with the Registrar within 14 days from the date of the general body meeting at which the resolution was passed. From the pleadings and materials on record, it appears that Ext.P-3 letter of intimation dated 11.7.2018 was given only by the President of the society and the abovesaid requirement of certification by not less than 3 members of the governing body is not seen submitted. The respondent did not point out this vital defect, which would then have been rectified by the petitioner. Since this was not done by the Registrar, there is no question of imposing the fine as envisaged in Sec.22(2) of the Act. Therefore, in the light of these aspects, it is only to be held that the view taken by the respondent in the impugned Ext.P-5 rejection order is illegal and improper and is liable to be set aside.

9. Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Thomas P.Kuruvila, learned counsel for the petitioner, has also pointed out to this Court's attention that in similar situation, this Court has allowed such pleas as per judgment dated 21.12.2017 rendered in W.P.(C).No.41456/2017 produced as Ext.P-6 herein.

10. Accordingly, the impugned Ext.P-5 order will stand set aside and the request in Ext.P-3 will stand remitted to the respondent for consideration afresh. The petitioner is given 10 days time from the date of receipt of the certified copy of this judgment, to submit certification by not less than 3 members of the Governing Body that Exts.P-2 & P-3 contain the correct copy of the resolution of the amendment as envisaged in Sec.22(1). It is made clear that, in such cases, a statutory fu

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nctionary like the respondent-Registrar will have the limited jurisdiction to ascertain from the materials as to whether the procedure prescribed in bye-laws has been adhered to in the matter of passing of resolution for change of name. The learned Senior Counsel appearing for the petitioner submits that materials in that regard have already been made as per Ext.P-2 report of the Extra Ordinary General Body Meeting before the respondent. The petitioner should also be granted a reasonable opportunity of being heard by the respondent. The respondent-Registrar will pass fresh orders on the request made by the petitioner in Ext.P-3 without much delay, preferably within a period of 3 weeks from the date of receipt of a certified copy of this judgment. It is reiterated and clarified that the respondent cannot reject the request made in Ext.P-3 on the ground that there are no enabling provisions in the Act and the Rules in registering change of name of a Society/Association like the petitioner. The petitioner may produce a certified copy of this judgment before the respondent for necessary information. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.
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