Society Registered Under Societies Registration Act Is Entitled To Sue And Be Sued, Only In Terms Of Its Byelaws - SC
A two-judge bench of Justice Hemant Gupta and Justice V. Ramasubramanian has held that the finding of the Waqf Tribunal that plaintiff no. 1/Mahal Committee was a legal entity entitled to sue is completely contrary to law. The Court made the following crucial observations:
"A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its byelaws. The byelaws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society. Under section 6 of the Societies Registration Act, 1860, "every society registered under the 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". Even the TravancoreCochin Literary, Scientific and Charitable Societies Registration Act, 1955, which is applicable to parts of Kerala carries a similar provision in section 9. Therefore, unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the byelaws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the byelaws support the institution of such a suit."
In appeal, was the judgment of the Kerala High Court in two civil revision petitions filed under proviso to subsection (9) of Section 83 of the Waqf Act, 1995 which had reversed the judgment of the Waqf Tribunal and decreed the suit of respondents in entirety. The suit of the appellants was dismissed. Hence, the instant appeal.
Mr R. Basant, Senior Advocate appeared for the appellants while Mr. V. Giri, Senior Advocate appeared for private contesting respondents.
A document qua which the appellants sought nullity declaration in their suit was a certificate issued by the CEO of Kerala Waqf Board in favour of Salafi Trust.
The reliefs sought were i) to declare the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala Waqf Board in favor of Salafi Trust as null and void, and (ii) for a permanent injunction restraining the defendants from interfering with their management and administration of the mosque and its properties.
The Tribunal had granted the relief of injunction but the relief of declaration was refused. This was not challenged by the appellants.
Respondents nos. 1 and 2 before the Court had sought the following reliefs from the Tribunal i) for a declaration that the second respondent A.K. Babu is the Secretary of the first respondent Trust namely Salafi Trust; and (ii) for a permanent injunction restraining Shri P.Nazeer, the Secretary of the Mahal Committee from interfering with their right of management of the mosque. Relief of declaration was granted but the injunction was refused.
The Tribunal refused to declare the certificate as void on the ground that Salafi Trust got the Waqf registered under Section 36 of the Waqf Act and that Mr Babu was Secretary of the Trust. The High Court decreed the suit of the respondents and dismissed the suit of appellants.
The Court held that the impugned order did not suffer from the vice sought to be attributed by the appellants.
The Court noted that it was crucial that the appellants did not prefer a revision against the order of the Tribunal and hence the Court held that the document dated 24.03.2004 would be a certification of registration under Section 36.
The Court also noted that "Once it is admitted that it was the first respondent namely the Salafi Trust who got the mosque registered as a waqf under Section 36 of the Act and once it is admitted by the appellants in paragraph 2 of their plaint in OS No.9 of 2004 that the mosque was constructed in a vacant plot demised by Salafi Trust, it was not open to them to go against the statutory prescriptions and claim to be the Mutawalli."
Hence, the appeals were dismissed. There was no order as to costs.