Allowed

New Market Business Welfare Committee Ward -19 v. the State of Nagaland and 3 Ors.

Gauhati HC21 Mar 2022WP(C)/119/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging three orders that restrained a society's operations and directed a name change. The court held the orders violated natural justice due to lack of notice and hearing and had no statutory basis, quashing them and directing the Registrar to decide a pending registration application within four weeks.

What did the court decide?

Orders dated 12.06.2019, 09.07.2019 and 18.07.2019 set aside and quashed; Petitioner cannot be restrained or directed to change name; Pending registration application of Respondent No. 4 to be decided

New Market Business Welfare Committee Ward -19 Vs the… — Service and Employment | Gauhati HC (2022)

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Page No.# 1/11

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GAHC020003242019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C) 119/2019

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1:NEW MARKET BUSINESS WELFARE COMMITTEE WARD -19 HEAD OFFICE, NEW MARKET, DIMAPUR, N/L, REPRESENTED BY ITS PRESIDENT SHRI HETOYI YEPTHO

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VERSUS

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1:THE STATE OF NAGALAND AND 3 ORS REPRESENTED BY THE CHIEF SECRETARY, N/L, KOHIMA

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2:THE JOINT SECRETARY TO THE GOVT. OF N/L AND EX-OFFICIO REGISTRAR OF SOCIETIES N/L KOHIMA N/L

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3:THE DEPUTY COMMISSIONER DIMAPUR N/L

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4:KUGHALI CHISHI PRESIDENT NEW MARKET BUSINESS OWNERS ASSOCIATION R/O THAHEKHU VILLAGE DIMAPUR N/

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Advocate for the Petitioner : H. ZHIMOMI

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Advocate for the Respondent : GOVT ADV NL

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Page No.# 2/11

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

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For the Petitioners : Mr. Pfosekho, Advocate. For the respondents : Mr. I. Longjem Advocate Mr. K. Angami. Government Advocate. Date of hearing : 21.03.2022 Date of Order : 21.03.2022

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JUDGMENT/ORDER (ORAL)

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21.03.2022

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Heard Mr. Pfosekho, the learned counsel for the petitioner. Also heard Mr. I. Longjem, the learned counsel appearing for the respondent No. 4 and Mr. K. Angami, the learned Government Advocate representing the State respondent Nos. 1, 2 and 3.

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The petitioner Association namely “New Market Business Welfare Committee Ward-19, by way of the present writ petition challenges the order dated 12.06.2019, whereunder the petitioner Association was asked to refrain the activities/operation (New Market Business Welfare Committee Ward-19) in new market area till further order. Such order was issued by the respondent No. 2 on the ground that the petitioner Association was initially registered as “Church Road Business Owners Association” bearing registration No. RS/HOME6765 dated 22.07.2014 issued by the Registrar of Societies, Nagaland and subsequently, the same was changed to “Nyamo Lotha Road Business Association” which was approved by the Registrar of Societies, Nagaland on

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Page No.# 3/11

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21.07.2015. Thereafter, the petitioner Association again applied for change of name to “New Market Business Welfare Committee Ward-19” and such change of name was accorded on 26.03.2019 by the Registrar of Societies, Nagaland. According to the respondent No. 2, there is no scope for change of jurisdiction and area of operation of the Association under the Societies Registration Act, 1860 and in view of such change of jurisdiction, the impugned order dated 12.06.2019 was issued.

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The second order under challenged is the order dated 09.07.2019 issued by the Deputy Commissioner, Dimapur, Nagaland whereby and where under the operation of the society in the new market area was restrained till further orders. The third communication under challenged is the 18.07.2019 issued by the respondent No.2, whereby the petitioner Association was directed to change the name of society of “New Market Business Welfare Committee Ward-19” or use the old name “Nyamo Lotha Road Business Association”.

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The case of the petitioner is that the aforesaid three orders/ communications were issued in total disregard of principles of natural justice inasmuch as no notice and no reasonable opportunity of hearing was granted to the petitioner Association. The petitioner submits that said orders are in direct conflicts with the provision of Section 23 of the Societies Registration (Nagaland Second Amendment) Act, 1984 inasmuch as the reasons cited in the communications are not the condition precedent as enumerated under SubSection 1 of Section 23 of the said Act of 1984.

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The learned counsel for the petitioner submits that the petitioner Association was formed in the year 2014 and initially registered as “Church Road Business Owners Association” bearing registration No. RS/HOME-6765 dated 22.07.2014 issued by the Registrar of Societies, Nagaland. According to the

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Page No.# 4/11 learned counsel for the petitioner, as the name of Church Road was changed to Nyamo Lotha Road, the nomenclature of the petitioner Association was changed from “Church Road Business Owners Association” to “Nyamo Lotha Road Business Association” vide Certificate of Registration for Change of Name dated 21.07.2015. Thereafter, according to the petitioner, business owners of both New Market and Nyamo Lotha Road held a general meeting on 10.12.2018 and resolved to amend the constitution/ by-laws of the Association and to change its nomenclature as “New Market Business Welfare Committee Ward -19” which was also recognized by the competent authority. Therefore, the impugned order could not have been passed and there is no provision and power to issue the impugned order, under the Act, 1860 (read with amendments made from time to time by the State of Nagaland).

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The learned counsel for the petitioner submits that the change in name has duly been done following the due process of law however, the cancellation has been made without following due process of law.

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The respondent No. 4 has contested the present proceeding by filing affidavit-in-opposition. The respondent No. 4 who is the President of “New Market Business Owners Association” submits that the said Association was formed in the year 2003. The New Market Business Owners Association is an Association of the traders/business owners in New Market Area under Ward No. 19 of the Dimapur Municipal Council. Though the said society was functioning since the year 2003, the Association was not a registered society. Therefore, a meeting was held on 03.05.2019 to decide about the registration of the Association. In the said meeting it was decided that all necessary steps should be taken for registration of the Association under the Societies Registration Act, 1860. Accordingly, the respondent Association submitted its application for registration under the Act, 1860 (read with amendments made from time to

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Page No.# 5/11

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time by the State of Nagaland) to the Registrar of Societies through the Deputy Commissioner, Dimapur. Such application was pending before the competent authority and the respondent No. 4 could learn that a complaint dated 07.05.2019 was submitted by the President of the petitioner Association objecting to the registration of the respondent’s Association so proposed to be registered.

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The learned counsel for the respondent No. 4 submits that refusal of registration of two societies in a locality or otherwise can be rejected only on the ground as enumerated in Section 3 of the Societies Registration (Nagaland Third Amendment) Act, 2008, which provides that refusal can be granted only when the name of the society is identical with any other society previously registered under the Act and any society which uses in its name the words “Union”, “State”, Land Mortgage” and “Land Development” etc. Accordingly, the learned counsel for the respondent No. 4 submits that the name of two Association i.e. the petitioner Association and the respondent No. 4 are not at all identical. Therefore, the respondent State ought not to have kept the application pending. He further submits that no opportunity or any show cause has been issued under Sub Section 2 of Section 3 of the Societies Registration (Nagaland Third Amendment) Act, 2008, nor any order of refusal has been issued to the respondent No. 4.

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The learned counsel for the petitioner also agrees to the submission that two names are not identical at all.

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The State respondents i.e. respondent Nos. 1 to 3 has contested this proceeding by filing the affidavit-in-opposition. At paragraph 4, the State respondent has taken the following stand:-

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“4……. That with regard to the statements made in paragraph 2 of

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Page No.# 6/11 the writ petition, the deponent respectfully begs to state that “New Market Business Welfare Committee Ward No. 19”, hereinafter refer to as “NMBWCW-19 or the Association”, has indicated a total about 200 members. Whereas as per the record available has a total of 15,000 (fifteen thousand) in the verification report dated 12.02.2019 duly verified by the District Administration of Dimapur. And upon closer examination of the initial constitution submitted and the latest constitution, there is an unapproved change in article 3 of the new constitution of the petitioner Association. That is, in other word, although in section 3 of its new constitution the Association of the petitioner has replaced the words “Church Road Area also known as Nyamo Lotha Road” in respect of its original jurisdiction and area of operation with the words “New Market Area & Surrounding Areas, NL Road, GS Road also known as Ward No. 19 under Dimapur Municipal Council (DMC)”, however, neither any notice for change of area/jurisdiction of operation in its constitution has been brought to the notice of nor the same is approved by the competent authority”.

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It is the case of the State respondents that the petitioner Association while proposing to change the name of their Association, has also decided to change their preamble as well as the jurisdiction and the area of operation of their Association. But they have not followed the procedure as laid down under Sub Section 2 of Section 4(A) of the Societies Registration (Nagaland First Amendment) Act, 1969 inasmuch they have applied for their change in name only, not change in area of operation and therefore, the impugned order has been passed.

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It is further argued that by way of Society Registration (Nagaland First Amendment) Act, 1969, Section 4(A) was inserted and Section 4(A)(ii) provides that if any altercation is made in the Rules of the Society, a certified copy by not less than three members of the governing body should send the same to the Registrar of Societies within thirty days for making such alteration. According to

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Page No.# 7/11

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the learned Counsel such proceeding was not followed.

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It is also submitted by the State respondents that there is no provision to change of jurisdiction/area of operation of a society which was already registered on the basis of their declaration of jurisdiction and area of operation. Accordingly they have been asked to stick to their original name.

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I have given anxious consideration to the submissions made by the learned counsel for the parties.

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Section 3 of the Society Registration (Nagaland Second Amendment) Act, 2008 is relevant consideration for determination of the issue involved in this litigation. Accordingly same is quoted herein below:-

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“Provided that the Registrar may, in his discretion, issue public notice or specific notices to such persons as he thinks fit for inviting objections, or effect necessary verifications through the Deputy Commissioners concerned, in regard to the proposed registration and also consider all objections that may be received by him before registering a society.

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(2) Notwithstanding anything in this Act, the registrar may refuse to register a society, if, after giving an opportunity to show cause against such refusal, he is satisfied that-

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(a) the name of the society is identical with that of any other society previously registered under the Act;

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(b) the name of the society sought to be registered uses any of the words, namely, Union, State, Land Mortgage, Land Development, cooperative or any words expressing or implying the sanction, word which suggests or calculates to suggests any connection with any local authority or corporation or body constituted by or under any law for the time being in force, or as such, is other society previously sought to be registered under this Act”.

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Page No.# 8/11

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It is apparent from the proviso to Sub Section 3 of the Society Registration (Nagaland Third Amendment) Act, 2009, that the Registrar is having discretionary power to refuse to register a society on the ground that the name of the society is identical with that of any other society registered previously or names sought to be incorporated uses the word “Union”, “State” “Land Mortgage”, “Land Development”, “Cooperative” or etc. However, such exercise of discretionary power should be preceded by issuance of a public notice or issuing specific notices to such persons as the Registrar thinks fit, seeking/inviting objections. Alternatively, the Registrar can make verification through the Deputy Commissioner concerned in regard to propose registration and need to consider all objections received by the Registrar.

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In the present case in hand, the impugned order reflects that this is not a case of refusal of registration rather same has been done on the basis of complaint against registration of change of name and jurisdiction and area of operation of the petitioner society. The impugned order dated 12.06.2019, reflects that the complaint was on the basis of the respondent No. 4. The said order nowhere seeks any explanation from the petitioner Association rather it is reflected that the Registrar of Society Nagaland had come to the conclusion only on the basis of the complaint by the respondent No. 4 and without affording any opportunity of hearing to the petitioner herein. The second order impugned dated 03.07.2019 is the fallout of the first order dated 12.06.2019. By issuing order dated 18.07.2019, the Registrar has gone further by directing the petitioner to change of name of the society. None of the impugned orders reflect under what authority of law or under which section of Society Registration Act empowers the Registrar to act in the manner, it has acted. The learned counsel for the State respondents as well as respondent No. 4 submits that the Registrar has exercised its power under aforesaid section 3 quoted

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Page No.# 9/11 hereinabove. As held hereinabove, the said Section nowhere empowers either to restrain the petitioner Association to continue with its activities and / or to direct the Association to change its name.

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Even if assuming that the Registrar has issued the impugned orders in exercise of aforesaid provision of law then also it can only be refuse registration of name of the respondent NO. 4 Society as the petitioner Society had got its name registered earlier to the respondent No. 4. The said provision of law mandates for adherence to principles of natural justice i.e. issuance of notices etc. However, while issuing the impugned orders, admittedly no notice was issued to the petitioner Association or any reasonable opportunity of hearing was granted to them. Therefore, in both the counts as explained, the impugned orders cannot sustain in law.

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The principles of natural justice mandates that a reasonable opportunity must be given to a person before taking any action against him. The adjudicating authority must disclose all the material placed before it and must give reasonable opportunity to the affected to submit his/ their case. A fair hearing means that a person against whom an adverse order is passed should be informed of the charges against him giving him an opportunity to submit his explanation to the charges and the person is also have a right to know the material on the basis of which the allegation is proposed to be decide. But in the case in hand while issuing the impugned orders, none of the said exercise was carried out.

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Section 1 of the Society Registration Act, 1860 (read with amendments made from time to time by the State of Nagaland) reflects that there is no bar for registration of more than one Association within the same locality as long as they fulfill the provision of Section 1 and Section 20 of the Act. It is submitted

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Page No.# 10/11

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by the learned counsel for the parties that some business owners of the New Market Area have joined the petitioner Association as its member and some others are willing to join the proposed Association represented by the respondent No. 4. That being the position, it is the considered opinion of the court that subject to provision of the Society Registration Act, 1860 (hereinafter referred to Act as 1860) as amended by State of Nagaland from time to time, there is no bar registering more than one society in the same locality.

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This Court is of the considered opinion that the application of the respondent No. 4 for registration needs to be considered on its own merit. Both the learned counsel for the petitioner and the respondent No. 4 submits that the name of the petitioner society i.e. “New Market Business Welfare Committee Ward -19” and the proposed society by the respondent No.4 namely “New Market Business Owners Association” cannot be said to be identical. This court is also of the similar view.

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Be that as it may, when an application for registration has already been filed by the respondent No. 4, it is the duty of the Registrar to take a decision on the said application on its own merit. Accordingly, this Court directs the respondent No.3, The Joint Secretary to the Government of Nagaland & ExOfficio Registrar of Societies, Nagaland, Kohima to take a decision by following due process of law on the pending application as stated hereinabove within a period of four weeks from receipt of the copy of this order to be furnished to the respondent No. 4.

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23. In that view of the matter, the orders dated 12.06.2019, 09.07.2019 and 18.07.2019 are hereby set aside and quashed and the writ petition is allowed

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Page No.# 11/11

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and it is held that the petitioners Society cannot be restrained from its operation or activities and cannot be directed to change its name, in the manner it has been done by way of the impugned orders. At the same time, it is held that the application of the respondent No. 4 cannot also be kept pending for the existence of the petitioner Society in the same locality for inasmuch as the businessman of the area are free to join any of the Association established under law.

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24. However, it is made clear that the present order shall not Bar the respondent No. 3 to proceed afresh strictly in accordance with the procedure laid down in the Societies Registration Act, 1860, if the petitioner Society has violated any provision of law.

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25. With the said observation and determination, this writ petition stands disposed of, however, no order as to cost.

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JUDGE

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Comparing Assistant

New Market Business Welfare Committee Ward -19 v. the State of Nagaland and 3 Ors.

Case brief

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New Market Business Welfare Committee Ward -19 v. the State of Nagaland and 3 Ors.

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