H.A.MARTIN Vs MOSES THAMBI PILLAI .
Bench: J. CHELAMESWAR,A.K. SIKRI
Case number: C.A. No.-008458-008458 / 2014
Diary number: 34500 / 2011
Advocates: SHASHI BHUSHAN KUMAR Vs
S. N. BHAT
Page 1
Reportable
IN THE SUPREME COUR OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8458 OF 2014 (Arising out of Special Leave Petition (Civil) No.9592 of 2012)
H.A. Martin & Others …Appellants
Versus
Moses Thambi Pillai & Others …Respondents
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. Aggrieved by the judgment dated 28.2.2011 of the
Division Bench of the High Court in Writ Appeal No.481 of
2011 the unsuccessful appellants therein preferred the
instant appeal.
3. The appellants are three in number. The first appellant
Rt. Rev. Dr. H.A. Martin is the present Bishop of the Tamil
Page 2
Evangelical Lutheran Church (for short “TELC”). The second
appellant is shown to be the Treasure. The details of the
person holding such an office are not mentioned anywhere.
The third appellant is the TELC, a body registered under the
Societies Registration Act, 1860 which is not capable either
of suing or being sued1. The ‘appellants’ cannot be blamed.
The first respondent herein was the petitioner in the writ
petition. He chose his respondents who became the
appellants herein. In an era of public interest litigation,
rules of procedure are the first casualty.
4. The facts giving rise to this litigation are as follows:
A Society came to be registered in the year 1919 called
Tamil Evangelical Lutheran Church (TELC). The objects of
the Society are diffusion of Christian truth among the Tamil
speaking people, various kinds of “moral and social
1 Section 6. Suits by and against societies.— Every society registered under this Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:
Provided that it shall be competent for any person having a claim, or demand against the society, to sue the President or Chairman, or Principal Secretary or the trustees thereof, if on application the governing body some other officer or person be not nominated to be the defendant.
2
Page 3
activities, such as, teaching and healing through pastoral
evangelistic, educational works, medical work for the
amelioration of the religious moral and social conditions of
all classes of people.”
5. In the year 1975, the State of Tamil Nadu enacted the
Tamil Nadu Societies Registration Act, 1975 (27 of 1975) (for
short “the Act”). Under Section 53 of the Act, every Society
registered under the 1860 Act is deemed to be registered
under the Act. Section 53 reads as under:
“53. Application of Act to existing registered societies.— Every society registered under the Societies Registration Act, 1860 (Central Act XXI of 1860), or under any law corresponding to this Act in force in the transferred territory immediately before the date of the commencement of this Act including the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (Travancore-Cochin Act XII of 1955), shall be deemed to be registered under this Act, and the bye-laws of such society, shall, in so far as they are not inconsistent with any provision of this Act, continue in force until altered or rescinded.”
(emphasis supplied)
6. It appears that an application was made by the earlier
Bishop and the President of the TELC to the Government to
exempt the TELC from all the provisions of the Act
retrospectively from 22.4.1978. (Unfortunately, a copy of
3
Page 4
the representation is not made available nor any details of
the same are available on record). The Government
declined to grant such blanket exemption and advised the
Society to be more specific about the provisions from the
operation of which the Society seeks exemption.
7. Pursuant to the said advice, the Secretary of the
Society made further representation dated 25.7.1981
seeking exemption from the provisions of Sections 14, 15(3)
(4)(5), 25(3), 26(1)(4), 28(1)(2), 29(3) and 36 of the Act.
8. By G.O. Ms. No.1708 dated 18.12.1981, the
Government of Tamil Nadu exempted the Society
retrospectively from 22.4.1978 from the operation of
Sections 15(4), 25(3) and 29(3) of the Act, the relevant
portion of which is extracted hereunder:
“In exercise of powers conferred by Section 54 of the Tamilnadu Societies Registration Act, 1975 (Tamil Nadu Act 27 of 1975) the Governor of Tamil Nadu hereby exempts with retrospective effect from 22.4.1978:
1. The President or Bishop of the Tamil Evangelical Lutheran Church alone from the provision of sub- section (4) of Section 15 of the Tamilnadu Societies Registration Act 1975 regarding the period of his
4
Page 5
term that it should not exceed more than three years; this exemption will not apply to the other members of the church council.
2. Also exempts the Church from the provision of sub- section (3) of section 25 of the Tamilnadu Societies Registration Act 1975 so as to ratify the action of the church in having paid the salary from out of its fund to the President or full time workers of the Church who come under the classification of “Officers” within the meaning of clause (g) of section 2 of the said Act.
3. And also exempts the church from the provision of sub-section (3) of section 29 of the Tamilnadu Societies Registration Act 1975 subject to the condition that necessary provisions are embodied in the bye-laws of the society for the supply of copies of minutes of the society’s meeting and Financial statements to the members at specified intervals, free of charge.”
(emphasis supplied)
9. Not satisfied with the said order, the Secretary of the
TELC filed the Writ Petition No.523 of 1982 seeking
declaration that the Act is void and inapplicable to the TELC
and its constituent bodies. The said writ petition was
dismissed by an order dated 20.2.1990, the operative
portion of which reads as under:
“When the writ petition came up for final disposal, learned Government Pleader would submit that though a counter affidavit had been filed contending that the aforesaid provision of the Act are valid and are not violative of constitutional provisions yet the Government would consider any representation
5
Page 6
made by the petitioner for grant of exemption in the light of the decided cases. Having regard to this submission of the learned Government Pleader while dismissing the writ petition as premature and not on merits, the petitioner is given a liberty to file a report before the Government on or before 31.12.1990, pleading for grant of exemption from such provisions of the Societies Registration Act as the petitioner may desire and on such representation being made, orders thereon would be passed by the first respondent on or before 30th April, 1991.
It is of course necessary to state that the Government itself had granted exemption in favour of the minority institutions from the operation of certain provisions of the Act like sections 15, 20 and 29. The petitioner seeks relief in respect of the remaining provisions of the Act which are mentioned supra.”
10. In the meanwhile the predecessor-in-interest of the first
appellant herein, one Rt. Rev. Aruldoss, was elected as
Bishop in terms of the rules of the Society and by virtue of
the rules of the Society he also became the President of the
Society (TELC). However, certain differences of opinion
arose between Rt. Rev. Aruldoss and some of the members
of the Society including the first respondent herein. The first
respondent herein and others filed complaints dated
3.8.2001 and 28.6.2002 with the Inspector General of
Registration praying for cancellation of the G.O. Ms. No.1708
dated 18.12.1981 etc. The substance of the complaint was
6
Page 7
that the President and other office bearers of the Society
were continuously drawing salaries from the Society’s funds.
Such payments are prohibited under the Act and the G.O.
Ms. No.1708 dated 18.12.1981 only ratified the action of the
Society in having paid some amounts till the date of the
order but there was no exemption enabling the Society to
make such payments subsequent to the date of the said
Government order. The Inspector General of Registration
passed an order dated 23.7.2002.
11. It is difficult to state with precision as to what are the
contents of the said order. But, it appears that the Inspector
General of Registration agreed with the complaint.
12. The first respondent filed Writ Petition No.32494 of
2002 seeking a direction to the Government to take
appropriate decision on his representation dated 3.8.2001
seeking cancellation of the abovementioned G.O. The said
writ petition was disposed of by an order dated 7.8.2002
directing the Government to consider the petitioner’s
7
Page 8
representation and pass an appropriate order on merits in
accordance with law.
13. Pursuant to the said direction, the Government issued
proceedings by Letter No.(Ms) No.128 dated 8.11.2002, the
relevant portion of which reads as follows:
“(iii) Exemption from Section 25(3) of the Act was granted for ratifying the action of the Church in having paid the salary from out of its funds to the President or full time worker of the Church. The Government only ratified the action of the Society in having paid salary from 29.4.1978 to the date on which Government order was issued and no payment has to be made thereafter since the society was not exempted from the above provision for the future.”
14. Thereafter, another application came to be made by the
Bishop on 25.11.2002 seeking complete exemption from the
operation of Section 25(3) of the Act praying as follows:
“(1) to ratify the salary paid to its workers from the date on which the Government order was passed to this date; and
(2) to modify the exemption so granted by removing the words:
“… or full time workers of the Church who come under the classification of Officers within the meaning of clauses (g) of Section 2 of the Act” and substituting with the following words:
“… or any other officer of the Church Society by way of honorarium for any service rendered by him to the Church Society in future also as per the main
8
Page 9
provisions of the Tamilnadu Registration Act of 1975, Section 25(3)”.”
15. The first respondent filed another Writ Petition
No.45886 of 2002 praying that (i) the proceedings of the
government dated 8.11.2002 referred to above be
implemented, (ii) for a direction to forbear the Bishop from
functioning as the President of the Society (TELC), (iii) a
direction for the recovery of all the amounts that have been
paid to the President and the officers of the Society (TELC)
from out of the funds of the Society from 19.12.1981. The
writ petition was allowed by order dated 11.12.2006.
Aggrieved by the same, the Writ Appeal No.481 of 2007 was
filed by the appellants herein unsuccessfully.
16. Before we proceed to examine the correctness of the
impugned judgment, we deem appropriate to examine the
scheme of the Act insofar as it is relevant for the present
purpose.
9
Page 10
17. Chapter II of the Act deals with the constitution and
registration of the Societies. Section 32 stipulates that any
Society which has for its object the promotion of education,
literature, science, religion, charity, social reform, art, crafts
etc. may be registered under the Act.
2 Section 3 - Societies which may be registered – (1) Subject to the provisions of sub-section (2), any society which has for its object the promotion of education, literature, science, religion, charity, social reform, art, crafts, cottage industries, athletics, sports (including indoor games), recreation, public health, social service, cultural activities, the diffusion of useful knowledge or such other useful object with respect to which the State Legislature has power to make laws for the State, which may be prescribed, may be registered under this Act.
(2) Notwithstanding anything contained in sub-section (1) no association which has for its object the improvement of the economic condition of workmen, no club where games of chance providing prizes for winners are played and no society which does not consist of at least seven persons shall be registered under this Act.
10
Page 11
18. Section 43 declares that every Society formed on or
after the date of the commencement of the Act, consisting
not less than twenty members; or whose annual gross
income or expenditure in any financial year after the date of
the commencement of the Act is not less than ten thousand
rupees, shall be registered under the Act. Section 4(2)
stipulates that every existing Society, NOT registered
under the 1860 Act with any one of the objects specified in
Section 3, and which consists of not less than twenty
3 Section 4 - Compulsory registration of certain societies – (1) Subject to the provisions of sub- sections (3) and (4), every society formed on or after the date of the commencement of this Act, which has for its object any object mentioned in, or prescribed under section 3, and
(a) which consists of not less than twenty members, or (b) whose annual gross income or expenditure in any financial year after the date of
the commencement of this Act, is not less than ten thousand rupees,
shall be registered under this Act within such period as may be prescribed.
(2) Every society in existence on the date of commencement of this Act, which has for its object any object mentioned in, or prescribed under section 3 and which has not been registered under the Societies Registration Act, 1860 (Central Act XXI of 1860), or under any law corresponding to this Act in force in the transferred territory immediately before the date of the commencement of this Act including the Travancore-Cochin Literary, Scientific and Charitable Socieities Registration Act, 1955 (Travancore-Cochin Act XII of 1955) and
(i) which consists of not less than twenty members; or (ii) whose annual gross income or expenditure in any financial year after the date of
the commencement of this Act, is not less than ten thousand rupees; or (iii) whose gross income or expenditure in any such period preceding the date of the
commencement of this Act, was not less than such amount, as may be prescribed, the period so prescribed, bearing to twelve months the same proportion as the amount so prescribed bears to ten thousand rupees;
shall be registered under this Act within such period as may be prescribed.
(3) Nothing in this section shall apply to any society which has for its object the promotion of religion, atheletics or sports (including indoor games).
Nothing contained in this Act shall be deemed to require the registration under this Act of any society formed, established, registered or incorporated under any other law.
11
Page 12
members or whose annual income or expenditure in any
financial year is not less than ten thousand rupees etc. shall
be registered under the Act. However, sub-section (3) of
Section 4 declares that “nothing in this section shall apply to
any Society which has for its object the promotion of religion,
athletics or sports including indoor games”.
19. Chapter III of the Act deals with the management and
administration of the registered Society. Section 15(1)4
mandates that every registered Society shall have a
committee of not less than three members to manage its
affairs. Section 15(4)5 limits the tenure of such members of
the Committee for a period of three years from the date of
their appointment.
20. Section 25(1)6 of the Act recognizes the power of the
Society to spend such amount out of its funds as it thinks fit
for the purposes authorised by the Act or the bye-laws of the 4 Section 15. Committee – (1) Every registered society shall have a committee of not less than three members to manage its affairs. Every registered society shall file with the Registrar a copy of the register maintained by it under sub-section (1) of Section 14 and from time to time, file with the Registrar notice of any change among the members of the committee.
5 Section 15(4) - The term of office of the members of the committee shall not exceed three years from the date of their appointment. 6. Section 25 - Application of funds of a registered society.—(1) A registered society shall have power to spend out of its funds such sums as it thinks fit on purposes authorised by this Act or its bye-laws.
12
Page 13
Society. Section 25(2) prescribes some restrictions on the
expenditure by the Society, the details of which are not
necessary for our purpose. Sub-section (3) which is the
relevant provision for the decision in this case reads as
follows:
“Save as provided in sub-section (2), no payment shall be made out of the funds of a registered society to the president or any other officer of the society by way of honorarium for any service rendered by him to the society.”
21. Various provisions of the Act seek to regulate the
activities of the Societies registered under the Act. The
expression “registered society” by definition under Section
2(h) means a Society either registered or deemed to be
registered under the Act. Section 3 of the Act specifies
various classes of Societies which could be registered under
the Act i.e. Societies which have for their object the
promotion of education, literature, science, religion, charity,
social reform, art, crafts etc. Section 4(1) mandates that
Societies which came into existence after the
commencement of the Act to be compulsorily registered.
Section 4(2) mandates the registration of some Societies
13
Page 14
which were in existence as on the date of existence of the
Act. It can be seen from the language of Section 4(2) that
only those existing Societies which were not registered
either under the 1860 Act or under any other law which was
in force in the State of Tamil Nadu prior to the 1975 Act to
be compulsorily registered. Such obligation to compulsorily
register (Societies) arising either under Section 4(1) or
Section 4(2) does not extend to Societies whose object is the
promotion of religion. Because under Section 4(3), Societies
established with the object of promoting either religion or
atheletics or sports, are expressly excluded from the
obligations even if they answer the description of a Society
referred to, either under Section 4(1) or 4(2).
22. At this stage, we are required to examine the effect of
Section 53. No doubt, Section 53 declares that every Society
registered under the 1860 Act shall be deemed to be
registered under the 1975 Act. Question is – whether a
Society such as TELC is required to be treated as Society
registered under the Act (1975 Act) in view of the operation
of Section 53?
14
Page 15
23. We are of the opinion that such a construction is not
called for in view of the scheme of the Act and more
particularly scheme of Section 4 of the Act. We have already
noticed that Section 4(3) expressly excludes the operation of
Section 4(1) and 4(2) thereby relieving both the classes of
Societies - the Societies formed after coming into the
existence of the 1975 Act and the Societies which were in
existence but not registered under any law prior to the
commencement of the 1975 Act - covered by Section 4(1)
and 4(2) which have for their object the promotion of
religion. In our opinion, the expression “Societies”
(registered under the 1860 Act) occurring in Section 53 must
be understood to mean only those Societies which do not fall
under the exemption granted under Section 4(3) of the Act.
Otherwise the operation of the Act would result in such an
absurd situation where Societies coming into existence after
the commencement of the Act or unregistered Societies
existing on the date of the commencement of the Act are not
obliged to register and comply with the discipline of the Act
but the existing registered Societies on the date of
15
Page 16
commencement of the Act are obliged to comply with the
regulatory conditions of the Act, notwithstanding the fact
that the activity of all the abovementioned three classes of
the Societies is to promote religion. Unless the expression
“Societies” occurring under Section 53 of the Act is
understood to mean Societies other than those whose object
is promotion of religion, atheletics or sports, the Act would
result in creation of two classes of Societies having the same
object, but one class is subjected to the discipline of the Act
and the other class exempted from it - all other things being
equal except the accident of an existing Society on the date
of the Act also happens to be a Society registered under the
1860 Act. Such an interpretation which would be in violation
of Article 14 is certainly required to be avoided. There can
neither be any reasonable basis for such classification nor
any purpose to be achieved by such classification.
Therefore, the Act is not applicable to TELC at all.
24. Looked at in the abovementioned background of the
statutory scheme, we are of the opinion that the entire
litigation between the parties herein is without any basis in
16
Page 17
law. It resulted in wastage of time of the judiciary as well as
the administration. Apparently neither of the parties nor the
administration had the time to examine or inclination to
examine the scheme of the 1975 Act. We are sorry to say,
even the judiciary (Bar & Bench) did not do any better.
25. In view of our above conclusion, it is really not
necessary for us to examine various submissions made in
this appeal by both the parties as all the submissions
proceeded on the assumption that TELC is a Society
governed by the provisions of the Act.
26. For the above reasons, the appeal is allowed. The
judgment under appeal is set- aside. The second
respondent, if he still has any legally tenable grievance de
hors the 1975 Act, is free to pursue such remedy available to
him under the law.
27. In the facts and circumstances of the case, there will be
no order as to costs.
………………………….J.
17
Page 18
(J. Chelameswar)
……………………..….J. (A.K. Sikri) New Delhi; September 04, 2014
18