Orissa High Court
Utkal Cine Chamber Of Commerce vs State Of Odisha & Others ……. Opp. … on 23 December, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 43100 of 2023
Application under Articles 226 & 227 of Constitution of India.
---------------
Utkal Cine Chamber of Commerce,
Cuttack & Others ...... Petitioners
- Versus -
State of Odisha & Others ....... Opp. Parties
Advocate(s) appeared in this case:-
________________________________________________________
For Petitioner : Ms. Pami Rath, Sr. Adv. with
M/s. P.K. Adhikari, S. Gumansingh,
S. Mohanty, P. Mohanty, J. Mohanty,
Advocates.
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate
M/s. Aditya Mishra, Sharmistha Pradhan,
B.P. Dhal, Advocates.
[ O.Ps. 4, 5, 6, 12, 13]
M/s. S.K. Tripathy, S. Sahoo, Advocates.
[ O.P. Nos. 9 & 14]
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
rd
23 December, 2024
SASHIKANTA MISHRA, J. The petitioner No. 1 is a society registered
under the Societies Registration Act, 1860. The other
petitioners are its Executive Members.
Page 1 of 39
2. Having regard to the issues involved, it is necessary
to relate the facts in some detail. In 1993, several film
producers and production houses came together and decided to
form a society to promote, protect and safeguard the interest of
the cinema industry at large and particularly, of the producers,
exhibitors and distributors in the State of Odisha. They applied
for registration of the society in the name of Utkal Cine
Chamber of Commerce by depositing the requisite fees. On
5.10.1993, the Additional Registrar of Societies, Cuttack issued
certificate of registration of the society, namely, Utkal Cine
Chamber of Commerce bearing certificate number 12663 /409
/1993- 1994. With passage of time new members got registered
with the society. The society, which had initially started with 15
members now has around 290 members. The society functions
through its 3 sections, namely, Film Production Section, Film
Distribution Section and Film Exhibition Section. The Film
Production Section of the society passed a resolution on
04.01.2021 to change the domain name of the association from
Utkal Cine Chamber of Commerce – Production Section to
Page 2 of 39
Odisha Film Producers Association (OFPA). OFPA is a unit of
UCCC. Any person who subscribes to the membership of OFPA
becomes a member of the UCCC but it has separate office
bearers and they are duly elected to its posts. Each section of
UCCC that is, Film Producer Section (OFPA), Film
Distribution Section and Film Exhibition Section have separate
office bearers. The office bearers of these 3 sections become the
executive members of UCCC.
3. The private opposite parties are not the executive
members of the petitioner society. On 24.05.2023, some of the
so called members, without any authorization of the President
or Secretary of the petitioner society convened an illegal and
unauthorised meeting wherein they appointed themselves as
President and Secretary of the society without any
authorization. These members then filed a representation on
26.05.2023 before the Additional Registrar of Societies raising a
complaint against the petitioner society and claimed
cancellation of the certificate of registration dated 05.10.1993.
The representation was submitted complaining about the
society‟s elections and disclosure of funds.
Page 3 of 39
4. Subsequently, some of the said complainants filed a
writ petition before this Court being W.P.(C) No. 18420 of 2023
for a direction to the Additional Registrar of Societies and
Additional District Magistrate to dispose of their representation
dated 26.05.2023. This Court, by order dated 08.06.2023
directed the Additional Registrar of Societies and Additional
District Magistrate to dispose of the representation of the
petitioners within 3 weeks from the date of receipt of the order.
5. On 01.07.2023, the Deputy Collector issued a notice
asking the petitioner society and all its office bearers to appear
personally and submit written submissions and supporting
documents on 07.07.2023. However the notice was sent to the
office bearers of Odisha Film Producers Association. Said notice
was never issued to the office bearers of UCCC. Nevertheless,
notice having been served on the members of OFPA, the office
bearers appeared before the authorities and pointed out that
the notice was sent to the office bearers of OFPA though
intended for UCCC. The office bearers of OFPA also filed reply
refuting all the allegations raised by the private opposite parties
and clarified the factual aspects. The matter was taken up by
Page 4 of 39
the Additional District Magistrate, Cuttack on 17.07.2023 on
which date he directed the Deputy Collector, Gen. & Misc. to
issue fresh notice to the petitioner society naming the correct
office bearers and posted the case to 25.07.2023 for
appearance as well as filing of written statement by the
petitioner society.
6. After receiving the order of the Additional District
Magistrate, some of the office bearers of the society submitted a
petition seeking time of two months for submitting all the
necessary documents as asked for by the authorities which
were voluminous and could not be traced within a short time.
On 25.07.2023, the office bearers of the petitioner society
appeared before the ADM, Cuttack and again sought for time.
However, no order was passed by the ADM and if at all any
order was passed, it was never communicated to the petitioner
society but the petitioner, acting bona fide submitted all the
necessary documents along with letter dated 09.08.2023.
7. Suddenly on 15.09.2023, the Registrar of Societies
re-registered Utkal Cine Chamber of Commerce issuing a fresh
Page 5 of 39
certificate bearing number 615/720202300068 of 2023-24. As
per the memorandum of the re-registered society, one Sanjay
Kumar Naik, opposite party No.4 is the President and one N.
Gangadhar Reddy, opposite party No.6 is the Secretary of the
society. When the office bearers of the petitioner society came
to know about such illegal re-registration of the society they
immediately submitted representation before the Inspector
General of Registration, Odisha by letter dated 21.09.2023
since as per the provisions of the Societies Registration Act or
Rules framed there under, there is no concept of re-
registration. When no response was received the petitioners
sought for information under the RTI Act. In reply, the
authorities submitted that the certificate earlier issued to the
petitioner society had not been cancelled yet re-registration had
been done on the same name on 15.09.2023.
8. In the meantime, the ADM disposed of the
representation dated 21.09.2023 by order dated 09.10.2023 by
stating that the Registrar of Societies has no scope to
intervene/regulate the internal conflict as per the provision
under Section 11-A of the Societies Registration (Odisha
Page 6 of 39
Amendment) Act, 2021 and the complainants were requested to
take shelter in the Court of Senior Civil Judge having
jurisdiction over the place at which the office of the society is
situated.
9. It is stated that as per the provisions of the Societies
Registration Act and the Rules and Regulations framed
thereunder, there is no power conferred on the authority to re-
register a society without cancelling the earlier certificate. The
earlier certificate granted in 1993 has not been cancelled till
07.11.2023. Thus the authorities have acted transgressing
their authority and power while issuing the illegal re-
registration certificate. Moreover, even cancellation of
registration requires a reasonable opportunity of hearing to the
office bearers of the society which was not provided.
10. The petitioner society had submitted reply to the
complaint filed by the opposite parties on 01.07.2023. But the
ADM has not considered any of the averments made in the said
reply. Further the petitioner society had sought for time to
submit the documents and had submitted the list of such
Page 7 of 39
documents on 09.08.2023 but the same were never taken into
consideration. Therefore, without passing any order on the
complaint filed by the private opposite parties the ADM straight
away issued the illegal certificate of registration. Had the
documents sought to be filed by the society been taken into
consideration the illegal certificate would not have been issued
on 15.09.2023. Even otherwise the complaint filed by the
private opposite parties regarding mismanagement of the
society does not at all make out a case for cancellation. There is
no evidence to show that the society has committed any fraud
against the general public or its members. Not a single evidence
has been cited to show that the office bearers have misused or
made fraudulent use of the registration number or name of
registration. As asked by the authorities the office bearers of
the petitioner society had duly submitted all the documents
including annual reports of the society showing financial
transactions of the last 13 years in its reply dated 09.08.2023
but the authorities did not deem it proper to consider the same.
11. Citing basically the above facts, the present writ
application has been filed with the following prayer:
Page 8 of 39
“It is therefore prayed that this Hon’ble Court may
graciously be pleased to admit this writ petition and
issue Rule NISI calling upon the Opp. Parties to show
cause and if they fail to show cause or show
insufficient cause, then issue appropriate writ(s),
order(s), direction(s):
a. To quash the certificate of registration dated
15.09.2023 at Annexure-20;
b. To declare the certificate of registration dated
05.10.1993 at Annexure-6 as valid registration
certificate;
c. To quash the proceeding under the complaint dated
26.05.2023;
d. And to pass any other/further order(s) as this
Hon’ble Court may deem fit and proper in the interest
of justice and equity.
And for this act of kindness, the petitioner as in
duty bound shall ever pray.”
12. Counter affidavit has been filed by the opposite party
No. 1. It is stated that the so called registration is not a re-
registration but a fresh registration by the Utkal Cine Chamber
of Commerce with the Registrar of Societies as required to be
done in view of the amendment made in the Societies
Registration Act, 1860 in the year 2021. As per Rule 3 sub-Rule
(2) of (sic) the Registration Rules, 2023 a society is to be
registered with the Registrar of Societies for having statewide
jurisdiction. It is also stated that the application filed on
08.09.2023 was disposed of as the Registrar of Societies has no
Page 9 of 39
scope to intervene in the internal conflict of the society as per
provisions made under Section 11A of the Societies
Registration Act and therefore it was advised to take shelter in
the court of Civil Judge Senior Division having jurisdiction over
the matter. It is also stated that the society registered with the
district level has been registered in the state level for enhancing
its jurisdiction as required under Rule 3, Sub-Rule 2 of the
Societies Registration Rules 2023. Since the society has never
been re-registered rather it has been registered at the state
level to enhance its area of operation and it has been issued
against the district level society there is no question of
cancelling the earlier certificate. It is also stated that the
matters stated in the writ petition relate to adjudication of
dispute which does not have anything to do with the certificate
issued on 15.09.2023.
13. The petitioner has filed a rejoinder to the above
counter. Referring to the different provisions of the Odisha
Societies Registration Rules, 2023, particularly Rule 3 thereof,
it is stated that none of the provisions of the Act or the rules
state that a certificate issued by the Additional Registrar to a
Page 10 of 39
society having operation in more than one district or
throughout the State becomes inoperative or invalid so that a
fresh registration has to be made under Sub-Rule 2 of Rule 3.
It is also stated that certificates issued before commencement
of the 2023 Rules do not become inoperative or invalid or
require fresh registration. Rules 3 and 4 merely state the
jurisdiction of the executive authorities of the state. Only
because after commencement of the rules IGR now has the
exclusive jurisdiction to register a society having its operation
in more than one district or throughout the state does not
warrant or create a legal compulsion for a society registered
prior to the commencement of the rules to apply again or be
granted suo motu fresh registration. Had the society required a
renewal or its registration had expired then only the occasion of
applying for any kind of registration would have arisen. It is
also stated that the rules and regulations of the society
appended to the registration clearly shows that the jurisdiction
of the society was for the whole of the state of Odisha and
therefore there was no occasion for increasing the area of
operation by making any such application. In view of the
Page 11 of 39
relevant provisions of the Amendment Act and the fact that the
1993 certificate still exists, a fresh registration in the name of
the producer society is not permissible. The entire exercise was
undertaken especially when the proceeding of cancellation of
registration under Section 12-D was pending. Knowing very
well about the pendency of the proceeding under Section 12-D,
a notice being issued to the office bearers wide order dated
17.07.2023 have taken a stand that the society applied for
registration for state- wide jurisdiction which shows that they
have not verified the documents of the society which would
have shown that the society already had jurisdiction over the
entire state and in view of the Section 12-D proceeding it could
not have entertained any application for registration. It is also
stated that Sanjay Kumar Naik was one of the applicants in the
Section 12-D proceeding, in the earlier writ application as also
the application for certificate of registration. If the entire
sequence of events are taken into consideration it will show
that Sanjay Kumar Naik as the petitioner in the earlier writ
application had sought for disposal of the Section 12-D
proceeding that is, cancellation of registration certificate of the
Page 12 of 39
petitioner society but the same Sanjay Kumar Naik
representing himself as the President has now induced the
authorities to issue the registration certificate which is entirely
contradictory.
14. A preliminary counter affidavit has been filed jointly
by private opposite party Nos.4, 5, 6, 12 and 13. It is stated in
the counter that the writ application is not maintainable since
the same involves disputes regarding the office bearer status of
the present opposite parties. As per the 2021 amendment to
the Societies Registration Act, the court of Civil Judge Senior
Division alone has jurisdiction to decide such disputed
questions of fact. On merits, it is stated that since the date of
registration of the society, there has been no election and as
per the then prevalent bye-laws, election is the only method
prescribed and the same to be held annually in the month of
January. The status of the other petitioners has been disputed.
It is further stated that there has been no cancellation of the
earlier registration obtained in 1993- 94 but in accordance with
the 2021 Rules, the same was re-registered only. The
petitioners claim to be the office bearers of the society and as
Page 13 of 39
per their own admission there has never been any election post
registration in 1993. It is also stated that the petitioners on
one hand allege non completion of hearing under Section 12-D
and at the same time have preferred the present writ
application. In view of their admission regarding the pending
proceeding there is nothing to show that all such objections
were ever raised. They did not have any locus to raise
objections and at best could have been raised directly under
Section 12-D and not by filing the writ application. It is further
stated that the registration issued in 1993-94 remained valid
for 5 years and after 2021 amendment had expired and no
longer remained valid. Under the circumstances the present
opposite parties sought to revive the society by obtaining a
fresh registration against the old registration in accordance
with the amended Section 3-A of the Act.
15. A Rejoinder has been filed by the petitioners to the
counter affidavit filed by the private opposite parties. It is inter
alia stated that prior to Odisha Amendment of 2021 to Section
3 of the Act, registration certificate did not have a validity
period. After the amendment every registration certificate
Page 14 of 39
issued under the 1860 Act in the state of Odisha has been
declared to have validity for 5 years from the date of its issue.
However as far as the certificates regarding societies which
were registered prior to the amendment, have been declared to
be valid for a period of 5 years from the date of commencement
of the amendment. The amendment of 2021 came into effect on
13.05.2021. The petitioner‟s registration being on 05.10.1993,
it would remain valid up to 13.05.2026. Therefore, there is no
question of expiry of the registration certificate dated
15.10.1993. It is further stated that the Act does not use the
word „re-registration‟ but only „renewal‟. Renewal is to be done
of something which has expired. Since the validity of the
registration certificate dated 15.10.1993 is up to 13.05.2026
there is no occasion for making any application for renewal
within the meaning of Section 3B of the Act. So, as on the date
of issuance of the fresh registration certificate a valid and
effective registration certificate under the name of Utkal Cine
Chamber of Commerce was existing. Moreover the private
opposite parties have themselves filed an application for
cancellation of the existing certificate under Section 12-D of the
Page 15 of 39
Act. It is also stated that in the order dated 8.6.2023 of this
court in the earlier writ application there was a clear direction
that till the Section 12-D proceeding is not completed no new
election to the executive committee of the petitioner society can
be undertaken. Presently, the Section 12-D proceeding is still
pending without any decision. Therefore, the private opposite
party No. 4, who was the petitioner in the earlier writ
application could not have got himself elected as President
through any election.
16. Heard Ms. Pami Rath, learned senior counsel with
Mr. P. Mohanty, learned counsel for the petitioner; Mr. S.N.
Pattnaik, learned Addl. Govt. Advocate and Mr. A. K. Mishra,
learned counsel for the private opposite parties.
17. Learned Senior Counsel Ms. Rath would argue that
the impugned certificate is portrayed as if it is a new certificate
but it has the name of the petitioner Society as also its
registration number, which is contrary to Rule 7. Admittedly,
as on the date of issuance of the impugned certificate a Section
12-D proceeding was pending. But against the same certificate
Page 16 of 39
and name the private opposite party No. 4 managed to get a
fresh certificate showing himself as the President under Rule 7
which is meant for a new society. In any case, Rule 7 cannot be
utilized for re-registration, renewal or creation of another
society having the same name and registration number
especially when a Section 12-D application is pending. Ms.
Rath would further argue that the stand of the private opposite
parties and that of the State are contradictory to each other
inasmuch as according to the private opposite parties the new
certificate is nothing but a re-registration whereas according to
the State it is not a re-registration but a fresh registration in
view of Rule 3 Sub-Rule 2. Neither of them has produced the
application form on the basis of which the new certificate has
been issued. Section 3C of the Act clearly states that if the
validity of registration certificate expires the same should be
published in the Official Gazette but no such publication had
been made in the instant case. Ms. Rath further emphasized
that there was no validity period of a certificate of registration
prior to coming into force of the Odisha Amendment in 2021.
As per the amended provisions the existing certificate remains
Page 17 of 39
valid upto 5 years from the date of commencement of the
amendment that is, from 13.05.2021. Thus, the certificate
already existing remains automatically valid till 13.05.2026.
She further argues that rules 3 and 4 relate to the distribution
of powers between the Registrar and Additional Registrar and
are prospective in nature. These rules do not say that the
certificates issued before commencement of the 2023 rules
become inoperative or invalid and require a fresh registration.
It also does not say that a certificate issued by the Additional
Registrar to a society having operation in more than one
district or throughout the state becomes inoperative or invalid
so that a fresh registration has to be made under Rule 3 Sub
Rule 2 due to the amendment. The rules only provide that IGR
now has exclusive jurisdiction to register a society having its
operation in more than one district or throughout the state.
This does not mean that the certificates issued prior to the
commencement of the new rules have become invalid or its
operation is hindered in the entire state. In any case, the earlier
rules and regulations of the society appended to the
registration certificate clearly shows that the jurisdiction of the
Page 18 of 39
society was for the whole of the state of Odisha and therefore
there was no occasion for increasing the area of operation. She
also highlights that the private opposite party No.4 as the
President had filed the section 12-D application for cancellation
of the registration and he also was the petitioner in the earlier
writ application. However, keeping the section 12-D application
pending he induced the state authorities to get a fresh
registration against the same number and name posing as
President when the election itself had been stayed on the
strength of the order passed by this Court.
18. Mr. S.N. Patnaik, learned State Counsel submits that
the complaint dated 26.05.2023 before the Additional Registrar
of Societies and Additional District Magistrate, Cuttack is a
proceeding under Section 12-D of the Act, which is pending. As
such, the Writ petition seeking quashing of the said proceeding
is not maintainable. As regards validity of the original
registration certificate issued in favour of the society, Mr.
Patnaik would argue that its validity shall always be subject to
the final outcome of the Section 12-D proceeding pending
before the Additional Registrar and therefore, the prayer made
Page 19 of 39
in the writ application to declare the certificate to be valid
during pendency of the said proceeding is not maintainable. Mr
Patnaik would further argue that the order passed by the ADM
was entirely in compliance of the order passed by this Court in
the earlier writ application filed by the private opposite parties.
Mr. Patnaik further argues that a fresh certificate has been
issued against the certificate earlier issued in favour of Utkal
Cine Chamber of Commerce with the Registrar of Society in
terms of the amended Act. The amended Act requires a society
to be registered with Registrar of Society having state-wide
jurisdiction. The society registered earlier by the Additional
Registrar having competency to issue certificate for operation
within the district only has been registered afresh at the state
level to enhance its area of operation. As such, there was no
requirement to cancel the earlier certificate. Even otherwise,
the petitioners can challenge the certificate by moving
appropriate application under Section 12-D before the Registrar
who has the power to cancel the registration. Mr. Pattnaik
concludes his arguments by submitting that alternative remedy
Page 20 of 39
is available under Section 11-A of the Act for resolution of
internal disputes among the members of the society.
19. Mr. Aditya Mishra, learned counsel appearing for
some of the private opposite parties argues that Section 1 of the
Societies Registration Act provides the jurisdiction of Registrar
and Additional Registrar. The territorial jurisdiction of the
Registrar is throughout the state but it is limited in case of
Additional Registrars. Mr. Mishra further argues that if the
provisions of Section 3 are read along with the other sections
after the 2021 Amendment, it would reveal that the validity
period of 5 years has been made applicable uniformly across all
registrations made before and after the amendment. The words
„such commencement‟ appearing in the proviso to Sub-Section
2 of Section 3 signifies the date of obtaining registration and
not commencement of the amendment. Mr. Mishra further
argues that Section 11-A provides an alternative efficacious
and speedy remedy for resolution of disputes. Since the
petitioners claim to be office bearers and challenge the
impugned certificate their remedy lies before the competent
Civil Court and not this Court. After 25.07.2023, there was no
Page 21 of 39
legal or valid office bearer to manage the affairs. Some of the
members decided to revive the society and a fresh application
was submitted for registration at the state level. The stay order
passed by this court in the earlier writ application relates to
election of executive committee members and does not bar
selection or nomination in order to upgrade area of operation
as undertaken in the present case. If the petitioners have any
grievance against issuance of the impugned certificate then the
remedy is available under section 12-D, which they have not
taken recourse to before filing of the writ application. On
merits, Mr. Mishra would argue that there has been no election
since 1993 of the society and the erstwhile elected body having
lost its validity, the present petitioners are no longer competent
to represent the society. On the other hand, the opposite
parties having assumed office as per the new bye-laws are the
true office bearers of the society. There is no provision for
selection of any office bearers. There is also no resolution on
25.70.2023. So how the petitioners came to be elected as
members remains under doubt. Mr. Mishra concludes his
arguments by submitting that on account of operation of the
Page 22 of 39
stay order the petitioners are taking undue advantage of the
situation and illegally collecting money from producers. As a
result, important functions such as certification, censor,
registration of title etc. have come to a halt for which the Odia
cinema industry has suffered at large:
20. From the foregoing narration of facts and the rival
contentions advanced, it is evident that the following points
arise for determination in the writ application.
(i) Whether the writ application is maintainable.
(ii) Whether the impugned certificate of registration is legally
valid.
21. On the question of maintainability of the writ
application it has been urged on behalf of the private opposite
parties that there being alternative efficacious remedy available
for resolution of the disputes as per Section 11A of the
Societies Registration (Odisha Amendment) Act, 2021 ( in short
„Act‟), the writ application involving disputed questions of fact
cannot be entertained. On the other hand, it is contended on
behalf of the writ petitioner that the lis involved is entirely a
question of law inasmuch as the validity of the certificate of
Page 23 of 39
registration issued by the Registrar purportedly as per the
provisions of Section-3(2) of the Act is to be decided herein
entirely on the question of his jurisdiction to do so without
reference to any facts pleaded.
22. Law is well settled that availability of alternative
remedy usually bars the jurisdiction of the writ Court. Long
back, a Constitution Bench of the Supreme Court in the case of
Union of India vs. T.R. Verma1, held that when an alternative
and equally efficacious remedy is open to a litigant, he should
be required to pursue that remedy and not invoke the special
jurisdiction of the High Court to issue a prerogative writ. In the
instant case, reference to the prayer made in the writ
application reveals that the petitioners have sought the
following relief:
“It is therefore prayed that this Hon’ble Court
may graciously be pleased to admit this writ petition
and issue Rule NISI calling upon the Opp. Parties to
show cause and if they fail to show cause or show
insufficient cause, then issue appropriate writ(s),
order(s), direction(s):
a. To quash the certificate of registration dated
15.09.2023 at Annexure-20;
1
AIR, 1957 SC 882
Page 24 of 39
b. To declare the certificate of registration dated
05.10.1993 at Annexure-6 as valid registration
certificate;
c. To quash the proceeding under the complaint dated
26.05.2023;
d. And to pass any other/further order(s) as this
Hon’ble Court may deem fit and proper in the interest
of justice and equity.
And for this act of kindness, the petitioner as in
duty bound shall ever pray.”
23. It has been contended that the impugned certificate
of registration (Annexure-22) is not valid on the face of the
validity of the existing certificate of registration dated
05.10.1993. It has been further contended that the impugned
certificate of registration has been issued in complete
contravention of the provisions of the Act as also the rules
framed thereunder and is therefore, wholly without jurisdiction.
Therefore, this Court finds that the dispute actually pertains to
interpretation of the relevant statutory provisions to see
whether the concerned authority was legally correct and had
the jurisdiction to issue the certificate of registration vis-a-vis
the provisions of the Act and the Rules. It is equally well settled
that where the order or proceeding is wholly without
jurisdiction the bar of alternative remedy will not apply. The
Page 25 of 39
Supreme Court held so in the case of Whirlpool Corporation
v. Registrar of Trade Marks, Mumbai2, wherein the following
observations of the Court are noteworthy.
“14. The power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for
issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the enforcement
of any of the Fundamental Rights contained in Part III of
the Constitution but also for “any other purpose”.
15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition. But
the High Court has imposed upon itself certain restrictions
one of which is that if an effective and efficacious remedy
is available, the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar in at
least three contingencies, namely, where the writ petition
has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of
the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of
an Act is challenged…..
xx xx xx.
[Emphasis added]
24. It would also be useful to refer to the following
observations of the Supreme Court in the case of Harbanslal
Sahnia vs. Indian Oil Corporation Ltd3.
“The rule of exclusion of writ jurisdiction by availability
of alternative remedy is a rule of discretion and not one
of compulsion and the Court must consider the pros and
cons of the case and then may interfere if it comes to the
2
(1998 )8 SCC 1
3
(2003) 2 SCC 107Page 26 of 39
conclusion that the writ seeks enforcement of any of the
fundamental rights; where there is failure of principle of
natural justice or where the orders or proceedings are
wholly without jurisdiction or the vires of an Act is
challenged.”
[Emphasis added]
25. Thus, the legal position that emerges is, the rule of
exclusion of writ jurisdiction by availability of alternative
remedy is a rule of discretion and not one of compulsion and
the Court must consider the pros and cons of the case and may
interfere if it comes to the conclusion that the writ seeks
enforcement of any of the fundamental rights; where there is
failure of natural justice or where the orders or proceedings are
wholly without jurisdiction or the vires of the Act is challenged.
26. From what has been discussed hereinbefore and in
view of the nature of challenge posed to the impugned
certificate, this Court is of the considered view that
notwithstanding the remedy provided under Section 11A of the
Act, the writ application is maintainable.
27. Even otherwise, Section 11-A provides a remedy of
raising a dispute in the Court of Senior Civil Judge and reads
as follows:
Page 27 of 39
“11A. In the event of any dispute arising among the
members of the society in respect of any matter relating
to affairs of the society including election, continuance of
an office bearer in the society, any member of the
society may file a petition in the Court of Senior Civil
Judge having jurisdiction over the place at which the
office of the society is situated and the said Court shall,
after making necessary inquiry, pass such order as it
may deem fit.”.
28. It is evident that any dispute arising among the
members of the society in respect of any matter relating to
affairs of the society including election etc. can be grounds for
filing a petition before the said Court. But then as discussed
earlier, the dispute in question is not so much relating to
affairs of the society but to the power of the Registrar to grant
certificate of registration invoking the provisions of the
Amendment Act, 2021. Thus, the contention advanced on
behalf of the private opposite parties is, untenable and the writ
application is held to be maintainable.
29. Coming to the main dispute, i.e., legality of the
impugned certificate, it would be apposite to refer to a few
relevant provisions of the Act at the outset. Section 1 of the
Societies Registration, Act 1860 (Odisha Amendment) reads as
follows
Page 28 of 39
“1. Application of Registrar of Societies: (1) The State
Government may, by notification, appoint a person to be
called the Registrar of Societies and he shall exercise
such powers and perform such duties and functions as
are conferred by or under the provisions of this act, and
shall subject to such general or special order as under
the provisions of this Act, and shall subject to such
general or special order as the State Government may
from time to time make, superintend the administration
and carry out the provisions of this Act throughout the
State of Odisha.”
Section-3 reads as follows:
“3.(1) Upon such memorandum and certified copy being
filed and on payment of such fee as may be notified by
the Government from time to time, the Registrar of
Societies shall certify under his hand that the society is
registered under this Act.
(2) A certificate of Registration issued under sub-section
(1) shall remain valid for a period of five years from the
date of issue:
Provided that a society registered under this Act,
before the commencement of the Societies Registration
(Odisha Amendment) Act, 2021, shall remain in force for
a period of five years from the date of such
commencement:”.
Provided further that nothing in this sub-section
shall apply to a society in which Government is a
member or contributor upon its registration under sub-
section (1).”
Section 3B and 3C of the Act are quoted hereinbelow.
3B. (1) A Society registered under section 3 whether
before or after the commencement of the Societies
Registration (Odisha Amendment) Act, 2021, shall, on
application made to the Registrar of Societies, within
one month before expiry of the period referred to in sub-
section (2) of section 3 and on payment of such fees as
may be prescribed in the rules, be entitled for renewal of
Its registration for a further period of five years.
Page 29 of 39
(2) The application for renewal made after the expiry of
the period referred to in sub-section (1) but not more
than six months after such expiry, shall be allowed by
the Registrar of Societies on payment of such late fees,
as may be prescribed in the rules.
(3) A society which falls to get its certificate of
registration renewed in accordance with this section
within six months from the expiration of the period for
which the certificate was operative shall become an
unregistered society.
(4) The Registrar of Societies may refuse to renew the
certificate of registration if he is satisfied that any of the
grounds mentioned in section 12-D exists in respect
thereof after giving opportunity of being heard before
such refusal.
3C. The Registrar of Societies shall publish in the official
Gazette the names of the societies whose validity of
certificate of registration has expired.”.
30. Coming to the facts of the case, it is not disputed
that Utkal Cine Chamber of Commerce was granted certificate
of registration bearing No.12663/409/93-94 issued by the
Additional Registrar of Societies, Cuttack on 05.10.1993. The
Societies Registration (Odisha Amendment) Act, 2021 (Odisha
Act 10 of 2021) came into force on 13.05.2021, i.e. the date of
its notification in the Odisha Gazette. The proviso to Sub-
Section(2) of Section 3 quoted above lays down that a Society
registered under the Act “before commencement of the
Amendment Act of 2021” shall remain in force for a period of
five years from the “date of such commencement”.
Page 30 of 39
31. It has been argued by Mr. A. Mishra, learned counsel
appearing for the private opposite parties that the expression
“such commencement” signifies the date of obtaining
registration and not commencement of the amendment and
further that from the amending act itself, section 3 stood
substituted and not inserted in order to have prospective effect.
32. Ms. Pami Rath, learned Senior Counsel on the other
hand, has argued that the language employed in the proviso is
plain and unambiguous, not admitting of any interpretation
other than what strikes to the mind on a bare reading thereof.
33. What would be effect of the expression “such
commencement” employed in the proviso to Sub-Section (2)?
Undoubtedly, the word „commencement‟ occurring in the first
part of the proviso directly relates to the date of commencement
of the Amendment Act. What then would be the meaning of the
same word used in the later part of the proviso?
34. It is well settled that when the legislature uses the
same word in different parts of the same section or statute,
there is a presumption that the word is used in the same sense
Page 31 of 39
throughout. Such view was taken by the Supreme Court in the
case of Bhogilal Chunilal Pandya v. State of Bombay, 1958
SCC OnLine SC 294 wherein it was held that words are
generally used in the same sense throughout in a statute
unless there is something repugnant in the context. In the case
of Central Bank of India v. Ravindra5, it was held that “where
the draftsman uses the same word or phrase in similar context,
he must be presumed to intend it in each place to bear the
same meaning”. In the case of Shamrao Vishnu Parulekar v.
District Shamrao Parulekar6, it was held that “the rule of
construction contended for is well settled, but that is only one
element in deciding what the true import of the enactment is to
ascertain which it is necessary to have regard to the purpose
behind the particular provision and its setting in the scheme of
the statue.”
35. Thus, the only interpretation of the word
„commencement‟ occurring twice in the proviso to sub-Section
(7) of Section 3 would be that it qualifies the Odisha
4
AIR 1959 SC 356
5
(2002) 1 SCC 367
6
AIR 1957 SC 23
Page 32 of 39
Amendment as regards the date on which it shall come into
effect. It would be absurd to hold that the word
„commencement‟ occurring in the first part would imply date of
commencement of the Amendment Act whereas, the same word
used later would relate to the date of obtaining registration.
36. Viewed thus, the plain and simple meaning of the
proviso to Sub-Section (2) would mean that a certificate already
in existence at the time of commencement of the Act i.e.,
13.05.2021, would continue to remain valid for a period of five
years from such date i.e., till 13.05.2026.
37. In the case at hand, the original certificate was
issued on 15.05.1993. So, as per the proviso to Sub-Section (2)
of Section-3, it would continue to be valid till 13.05.2026. The
Additional Registrar, Cuttack however, granted fresh certificate
of registration on 15.09.2023 and that too in the same name
and registration number that was granted earlier. In this
context, it would be useful to note that in exercise of power
conferred under Section 21 of the Act, the Odisha Societies
Registration Rules, 2023 was enacted. Rule-7 deals with
Page 33 of 39
registration process and certificate of registration. It provides
that the certificate of registration shall be issued in Form-1
appended to the Rules.
38. Thus, Rule-7 deals with issuance of fresh or new
registration certificate. According to the State, the impugned
certificate of registration is a fresh registration issued against
the existing certificate. Surprisingly, in the written note of
submission filed on behalf of the IGR, it is stated that after
introduction of the Amended Act, 2021, the validity period of a
society‟s registration is always for five years and in respect of
an existing society, it is deemed validated for a period of five
years “from the date of introduction of the Amended Act“. If
such is the case, the question is, how could the impugned
certificate be issued when the original certificate had not lost
its validity. In fact, Section 3C quoted earlier provides that the
Registrar of the Societies shall publish in the Official Gazette,
the names of the societies whose validity of certificate of
registration has expired. Nothing has been placed before this
Court to show that any such exercise had been undertaken
before issuance of the impugned certificate. In fact, such an
Page 34 of 39
exercise could not have been undertaken in respect of the
petitioner society in view of the fact that the certificate is
deemed to be valid till 13.05.2026. This Court therefore, holds
that the impugned certificate having been issued in
contravention of the proviso to Sub-Section (2) of Section 3
cannot be treated as legally valid being wholly without
jurisdiction.
39. It has also been contended on behalf of the State as
well as the private opposite parties that the impugned
certificate of registration is in fact, a re-registration, which was
required to be issued enhancing the area of operation of the
society to cover the entire State in view of Rules 3 & 4 of the
2023 Rules. The above contention can be considered only to be
rejected, the reason being, Rules 3 and 4 occur in Part-II of the
Rules under the heading, „Registrar of Societies‟, While Rule-3
deals with powers of the Registrar, Rule-4 provides for
appointment of the Additional Registrar. Both these rules, inter
alia, provide that the Registrar shall have jurisdiction to
register the society where its registered office is to be situated
in any part of the State but its area of operation and activities
Page 35 of 39
shall be extended to the whole of the State or to more than one
district. Firstly, the application submitted for the so-called re-
registration or fresh registration, as the case may be, has not
been placed on record by either of the parties. Secondly, it is
not disputed that the original rules and regulations of the
society as appended to the original certificate of registration
provide for state-wide operation. There was thus, no occasion
for any application being submitted for enhancement of the
area of operation of the Society.
40. Another important aspect that can be discerned from
the facts of the case is that admittedly, a complaint was
submitted by some of the private opposite parties on
26.05.2023 for cancellation of the certificate of registration. The
complaint has been addressed to the Additional Registrar of
Societies and Addl. District Magistrate, Cuttack, wherein
several allegations have been leveled with prayer to cancel the
registration of the society with immediate effect. Such an
application is deemed to have been submitted under Section
12-D of the Act, which reads as follows:
“12-D. Registrar’s power to cancel registration in
certain circumstance.–(1) Notwithstanding anythingPage 36 of 39
contained in this Act, the Registrar may, by order in
writing , cancel the registration of any society on any of
the following grounds, namely:–
(a) the registration of the society, or its name or change
of name is contrary to the provisions of this Act or of any
other law for the time being in force; or
(b) its activities or, opposed activities have been, or are
subversive of the objects of the society or proposed to
public policy; or
(c) the registration certificate has been obtained by
misrepresentation of fact or fraud; or
(d) the society fails to comply the direction issued under
sub-section (4) of section 12-A:
e) the society fails to submit the audit report required
under sub-section (2) of section 4D:” andProvided that no order of cancellation of
registration shall be passed without giving the
concerned society a reasonable opportunity of being
heard.”
41. As has already been stated hereinbefore, being
noticed, the petitioners appeared and requested for time to
submit the documents and in fact submitted the documents on
09.08.2023. While the matter was thus pending, the impugned
certificate was granted. No final order appears to have been
passed in the Section 12-D proceeding. It has been argued on
behalf of the State that issuance of the fresh certificate has no
bearing on the Section 12-D proceeding. This Court finds that
in an earlier writ application, being W.P.(C) No. 18420 of 2023
filed by the private opposite party No.4, a coordinate Bench of
Page 37 of 39
this Court had directed the ADM to conclude the proceeding
with the further rider that no election of the office bearers shall
be held before disposal of the Section 12D complaint.
42. Having regard to the facts involved, it cannot be said
that the 12D proceeding had no nexus with the grant of fresh
certificate of registration. In fact, both are intrinsically related.
A party cannot be allowed to pursue two remedies
simultaneously. Here, the private opposite party No.4 and some
other, jointly filed the complaint under Section 12D for
cancellation of the original certificate. While the same was
pending, they could not have submitted application for grant of
fresh certificate, which according to them was a re-registration.
There is no provision in either the Act or the Rules providing for
re-registration. In fact, it is an unknown concept. Be that as it
may, the Additional Registrar could not have entertained the
application for grant of fresh registration/re-registration,
whatever be its nomenclature, when the proceeding under
Section 12D was pending. In the fitness of things, an order
ought to have been passed in the 12D proceeding concluding it
at the first instance.
Page 38 of 39
43. Thus, from the above narration of facts it is seen that
the concerned State authorities have dealt with the issue in a
somewhat haphazard manner and in any case, contrary to the
provisions of law. The entire action therefore, becomes
unconscionable in law warranting interference by this Court.
44. To sum up, this Court holds as follows:
(i) The fresh registration/reregistration of the society
in question by the Additional Registrar vide
Annexure-22 being contrary to the statutory
provision is invalid in the eye of law.
45. In the result, the writ petition is allowed. The
impugned certificate of registration under Annexure-22 is
hereby quashed.
……………………………
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 23rd December, 2024/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 39 of 39
Date: 23-Dec-2024 12:21:44