# Boppana Ru,,,.inamma v. Maganti Vt11kata Ramadas, A.l.R

- **Citation:** [1962] Supp. 1 S.C.R. 156
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/boppana-ru-inamma-v-maganti-vt11kata-ramadas-a-l-r-2412
- **Pages:** 50

## Headnote

Registered Society-Wliether a corporation-Stat. enactment
dia.o/ving suclo aocir.ty and aelting up corporati-On in ita placeCo11.sti1utionaliry of-Tibbia College Act, 1962 (Delhi 6 of 1962).
-R•giarered Societies Act, 1860 (21of1860), s.. 6,6,7,!3,14Uot'trn'TM11t
of Part 0 Stat.a Act, 1961 J49 of /9fil), s.~O
Co111litution
of b1dia, Ar~. U, 19(1)( ), JI and Srnmlh
Scl.edule, List 1 E11try
44, ,Liat JI Entry 32, Li81 Ill Entries
JO and !!8.
•
The Board of Trusteu, Ayurvedic and Unani Tibbia
College, Delhi wa• registered under the Societie9 Registration
Act, 1860. It ran the Tibbia College, Delhi and an attached
ho>tel and managed the Hindustani Dawakhana. The Delhi
State Legislature passed the Tibbia College Act, 1952, which
dissolved the Board, incorporated a new Board and vested all
the property and all the rights, powers and privileges of the
old Board in the new Board. The petitioners challenged the
validity of the Act on the grounds: (i) that the old Board was
a corporation whose objects were not confined to Delhi and
legiJlation with regard to it would fall under Entry 44 of List
I of the Seventh Schedule to the Constitution and as such the
State Legislature was not competent to pa" the impugned
Act, (ii)
that the setting up of a new Board as a corporation
wa• beyond the powen of the State Legislature, (iii) that the
Act violated Arts. 14,19 and 31 of the Constitution, (iv) that
the Act could not override the Societies Registration .Act, 1860
which was> Central Act, and (v) that the legblature a<:ted
mala fiM in passing the impugned Act.
Held, (per Sinha, C. J., Das, Sarkar and AyyaMpr,lJ.)
that the State Legislature was compelent to enact the
impugned Act. On
~tration under the Socie~ies ~egistration Act the old Board dtd not become a corporation 1n the
11ense of bei1111 incorporated within the meaninp; ofBntry 44 of
Li1t I; it continued to be an unincorporated IOCiety though
under the provisions of the Socictiea Registration Act it had
certain privikgcs analogous to those of corporations. The
provisions in the impugned Act relating to the dissolution of
the old Board fell within the second part of Entry 32 of List II
which included
unincorporated
societies. Though the
impugned Act while creating the
new Board gave it a
corporate status, it confined its po1rers-and duties to institutions
•
..
J
II
(1)
s.c.R. SUPREME COURT REPORTS
107
in Delhi and limited its rights, powers and privileges to the
purposes for which it was created. The pr-0visions of the
impugned Act relating to the
incorporation of the new Board
fell within the first part of Entry 32 of List II.
Taff Valt Railway v. .A.malgamakd Society of Railway
Servants, (1900) A.O. 426 and Bo11Aor v. Musicians' Union,
L.R. 1956 A.C. !04, referred to.
Krishnan v.
Sundaram, (1940) 43 Bom.
L.R. 562,
Boppana Ru,,,.inamma v. Maganti Vt11kata Ramadas, A.l.R.
1940 Mad. 946, M . .A.. Nullflitr v. Official Assignee, Madras,
A.I.R. 1951 Mad. 875 and Satyavart Sidhantalanl:ar v. Tht
Arya Samaj, Bombay, (1945) 48 Born. I .. R. 541, distinguished.
The Stroanl8 of India Society, Poona v. Tht Charity
Commissioner of Bombay, (1960) 63 Bom. L.R. 379, approved.
Htld, further, that the impugned Act did not violate
Arts. 14,19 or 31. The petitioner had failed to show that
there were other institutions similarly situated as the petitioner
and that the petitioner had been picked out for unequal treatment. Since the transfer of management was made by a valid
law there was no question of violation of Art. 31 (I); and since
the impugned Act did not provide for compulsory acquisition
of property Art.
31 (2), as it stood at the relevant time, had
no application. Neither the dissolved Board nor its members
had any right to hold the property of the dissolved Board and
there was no infringement af Art. 19(l}(f) involved in the Act
vesting the property in the new Board. Under the Societies
Registration Act, the members of a society did not acquire
any beneficial interest on the dissolution of the s

## Text

_Characters 0–39,993 of 102,232. This is a partial read: ask again with offset=39993 for what follows._

1111
OtttHtr 23.
156 BUPREiltE COC'RT RElQRTS
[19f~] SUPP.
t'-
T~E BOARD OF TRUSTEES, A YURVEDIC AND
UNANI TIBIA COLLEGE, DELHI
ti.
THE STATE OF DELHI AND ANOTHER
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MuDHOLKAR, JJ.)
Registered Society-Wliether a corporation-Stat. enactment
dia.o/ving suclo aocir.ty and aelting up corporati-On in ita placeCo11.sti1utionaliry of-Tibbia College Act, 1962 (Delhi 6 of 1962).
-R•giarered Societies Act, 1860 (21of1860), s.. 6,6,7,!3,14Uot'trn'TM11t
of Part 0 Stat.a Act, 1961 J49 of /9fil), s.~O
Co111litution
of b1dia, Ar~. U, 19(1)( ), JI and Srnmlh
Scl.edule, List 1 E11try
44, ,Liat JI Entry 32, Li81 Ill Entries
JO and !!8.
•
The Board of Trusteu, Ayurvedic and Unani Tibbia
College, Delhi wa• registered under the Societie9 Registration
Act, 1860. It ran the Tibbia College, Delhi and an attached
ho>tel and managed the Hindustani Dawakhana. The Delhi
State Legislature passed the Tibbia College Act, 1952, which
dissolved the Board, incorporated a new Board and vested all
the property and all the rights, powers and privileges of the
old Board in the new Board. The petitioners challenged the
validity of the Act on the grounds: (i) that the old Board was
a corporation whose objects were not confined to Delhi and
legiJlation with regard to it would fall under Entry 44 of List
I of the Seventh Schedule to the Constitution and as such the
State Legislature was not competent to pa" the impugned
Act, (ii)
that the setting up of a new Board as a corporation
wa• beyond the powen of the State Legislature, (iii) that the
Act violated Arts. 14,19 and 31 of the Constitution, (iv) that
the Act could not override the Societies Registration .Act, 1860
which was> Central Act, and (v) that the legblature a<:ted
mala fiM in passing the impugned Act.
Held, (per Sinha, C. J., Das, Sarkar and AyyaMpr,lJ.)
that the State Legislature was compelent to enact the
impugned Act. On
~tration under the Socie~ies ~egistration Act the old Board dtd not become a corporation 1n the
11ense of bei1111 incorporated within the meaninp; ofBntry 44 of
Li1t I; it continued to be an unincorporated IOCiety though
under the provisions of the Socictiea Registration Act it had
certain privikgcs analogous to those of corporations. The
provisions in the impugned Act relating to the dissolution of
the old Board fell within the second part of Entry 32 of List II
which included
unincorporated
societies. Though the
impugned Act while creating the
new Board gave it a
corporate status, it confined its po1rers-and duties to institutions
•
..
J
II
(1)
s.c.R. SUPREME COURT REPORTS
107
in Delhi and limited its rights, powers and privileges to the
purposes for which it was created. The pr-0visions of the
impugned Act relating to the
incorporation of the new Board
fell within the first part of Entry 32 of List II.
Taff Valt Railway v. .A.malgamakd Society of Railway
Servants, (1900) A.O. 426 and Bo11Aor v. Musicians' Union,
L.R. 1956 A.C. !04, referred to.
Krishnan v.
Sundaram, (1940) 43 Bom.
L.R. 562,
Boppana Ru,,,.inamma v. Maganti Vt11kata Ramadas, A.l.R.
1940 Mad. 946, M . .A.. Nullflitr v. Official Assignee, Madras,
A.I.R. 1951 Mad. 875 and Satyavart Sidhantalanl:ar v. Tht
Arya Samaj, Bombay, (1945) 48 Born. I .. R. 541, distinguished.
The Stroanl8 of India Society, Poona v. Tht Charity
Commissioner of Bombay, (1960) 63 Bom. L.R. 379, approved.
Htld, further, that the impugned Act did not violate
Arts. 14,19 or 31. The petitioner had failed to show that
there were other institutions similarly situated as the petitioner
and that the petitioner had been picked out for unequal treatment. Since the transfer of management was made by a valid
law there was no question of violation of Art. 31 (I); and since
the impugned Act did not provide for compulsory acquisition
of property Art.
31 (2), as it stood at the relevant time, had
no application. Neither the dissolved Board nor its members
had any right to hold the property of the dissolved Board and
there was no infringement af Art. 19(l}(f) involved in the Act
vesting the property in the new Board. Under the Societies
Registration Act, the members of a society did not acquire
any beneficial interest on the dissolution of the society; the
only right which they had was to determine as to which other
society the property should be given to for management.
This was not a right to property within the meaning of Art.
19(l}(f) and the taking away of such a right by the impugned
Act did not violate Art.
19( I) (f}.
Ohiranjit Lal Ohowdhuri v. Tht Union of India, [1950]
S.C.R. 869, relied on.
Mate of WEBI Bengal v. Subodh Gopal Bose, {1954] S.C.R.
587 and Dwarkadas 8hrini111U1
v. 'l'ke Sholapur Spinning and
Wea,ing Oo., Ltd. (1954] S.C.R. 674, distinguished.
Held, further, that there was no question of conflict between a law made by Parliament and a law made by the State
Legislature as the Societies Registration Act, 1860, was not a
law made by Parliamen1. The State Legislature had the power
either to amend the Societies Registratimt Act in rcsp«:t of unincorporated societies, or to make a law relating to a corporation provided its activities were confined to Delhi. The·Di!lh.
State Legislature did not transgress·any af its limitMIC>As·in
1'fl
Tlu.l1Hdllf
r_,_, Ayurr.iie
••••/. u...,.; r;n.
c.11., ••. D,J/ri
••
Thr &1"'6 •I D1hi
1"1
'l'lw Boni of
T nutm, A.1"'..&
and Unani Tibia
Colkt•. D1/M
v.
Th< 81011 of D1/hi
S. K. Das J.
168 SUPREME COURT REPORTS [1962] SUPP.
•·
enacting the impugned
Act and no que.iion of mola jidu of
the legislature arose.
K.C. Gajapati .Varriyn Deo v. The State of Orissa, [1654]
S.C.R. l. relied on.
Per, Mudholkar, J., Though the old Board could not be
regarded as a corporation as the Societies Registration Act does
not provide for
incorporation, it passessed some of the attributes of a corporation and it was a 'near corporation' or a 1qua'ii
corporation'. It was a legal entity. The second part of Entry
32 of List II did not permit a law to be made which took away
from an existing legal catity its powers such as tho;e conferred
by the Societies Registration Act and which destroyed the
lr!(lll entity. The impugned Act could not be supported under
the first part of Entry 32 of List II as the objects of the Board
were not limited to the Delhi State.
But Entries IO and 28
of List III
permitted the State Legislature to make a law
di!S<Uv1ng a charitahle
trust and transferring its property,
rights etc.
to another institution and the i1npugned :\ct could
be sustained und'Cr these Entries.
Serr'(lnt• of IndifJ Soci'1y, Poona v. The Charity Comm;.,.
1ioner of Bombay, (I 960) 63 Born. L. R. 397,
The Taff V nl•
Rrzilu,'(1y Co. r. Th, Amalgamated Snriety nf Railuuz.y 1i)eria11t",
[IYOI] A.C. 426 and Bon«or '" Mu.<ioian.•' Union, [19j6] A.C.
104, referred to.
0RIOP-'IAJ. JURISDJCTJO:S: Petition No. 96 of
1955.
Petition und<>r Art. 32 of the Constitution of
India. for enforcement of Fundamental Rights.
Purushottam
Tricumdas, J. B. Dad11chauf,
R11vindra Narain and 0. C. Mathur, for tho petitioner.
C. K. DaphtanJ, Solicitor-General of India,
B. R. L. Iyengar and T.M. Sen, for the respondent8.
1961. October 23.
The Judgment of Sinha,
C. J., Das, Sarkar and Ayyangar, JJ., was delivered by Das, J. Mudholkar, J., delivered a separate
Judgment.
S. K. DAS, J.-This is a writ petition on
behalf of two petitioners. The first petitioner
is the Board of TruHtees, Ayurvedic and Unani
'fibbia College, Delhi, through Hakim Mohammed
Jamil Khan, stated to be its properly elected
Secretary. The
Becond
petitiJner
is
Hakim
..
(1) S.C.R.
SUPREME COURT REPORTS
1511
l\:lohammad Jamil Khan himself, who states tbat
he is still one of the trustees or members of the said
Board. The petition was initially filed on behalf
of the first petitioner. Subsequ 0 ntly, an amendment petition was moved which was allowed by us.
As a result of the amendments allowed petitipner
No. 2 was added as one of the petitioners, and
certain new grounds of attack were added in para.
14 of the petition. To these grounds we shall
advert later.
The short facts giving rise to the petition are
these. One Hakim Mohammad Ajmal Khan was a
physician (of Unani medicine) of all-India repute.
He lived in Delhi and started a pharmaceutical
institute in the town known as Hindustani Dawa·
khana in the year 1903.
He also established a medical college known
as the Tibbia College. He dfod in the year 1927.
But before his de1tth, in the year 1911, he along
with certain other persons formed a society styled
Anjuman-i-Tibbia and had it registered under the
Societies Registration Act, 1860 (Act XXI of 1860).
Tho name of the society was changed in 1915, and
it bemme known as the Board of Trustees, Ayurvedic and UQani Tibbia College, Delhi. For
convenience we shall refer to it .as the Board.
The Board ran the Tibbia College' and an attached
hostel. The pharmaceutical institute was also
managed by it, though at one stage petitioner
No. 2 claimed the institute as his private property.
Certain rules and regulations were made for the
functioning of the Board, which were amended
from time to time. The main objeets of. the Board
were thus stated in the rules :-
(a) to establish colleges for the purpose
of imparting higher education in the Unani
and Ayurvi;idic systems of medicine to the
inhabitants of India;
(b) to improve the indigenous systems of
medicine on scientific lines and for that
JIMJ
T/,,Boord•f
Trustees, Ayuniedit
~d Unaai Tibia
College, Delhi
v
The Stote of Delhi
S.K. D., J.
1151
TJ,, 8-'•f
f'nutu1, A;11Tw/k
and u 1l41li rthia
Coilt11, Dtllti
Y.
n. Stau of V.lhi
S. A.DosJ,
160 SUPREME COURT REPORTS (1982) SUPP.
,.
purpose to establish one or more phanna.ceutical institutes ( dawakhanas); and
( c) to h!\ve medical books compiled and
tr1mslatf'd and to adopt other means which
might enbanoe the popularity of those systems
and add to the information of the people in
general on hygiene etc ..
The maximum number of mt>mbers (callrd
trustees in the ruks) was ~5 to be elected from a.II
the then Provinoes of India. It was stated in
r. 5 that one-third of the membt•rs of the Board
should be Hakima and V aid8. The financial yt>ar
of the Board was to be from April 1 to March 31
of each year, snd the annual au bscription to be
paid by a member of the Board was fixed at
Rs. J 2/- per annum payable in advance before
April 30 of each year.
Rule 6 laid down the
circtJmstances in which the office of a mem her
should he deemed to be vacant, and one of such
ciicumstances was the failure of a member to
pay his annual sub8cription before the date fixed
for such p!\yment. There were also rules regarding (a) power of in~pection of the co liege, hoste 1
etc., ( b) ordinary meetings of the Board of Trustct•s
and (c) matters which could be dealt with by the
Boa.rd and its sub-committees. It is not necci:•ary
to state these rulea in detail. Rule 13 provided
for the formation of a Managing Committee consisting of nine mem hers and six officials for a
period of three years and the functions of the
Managing Committt>e were also prescribed in the
rules. The office-bearers of the Board and the
Managing Committee were to be the same and
consisted of ( i) a President, (ii) a Senior Vice.
President, (iii) a Junior Vice-President, (iv) a
Secretary, ( v) a Financial Secretary, and (vi) a
Joint Secretary. It was la.id down in r. 26 that
the offioe, bearers of the Board were to be elected
for three years by the members. Thr rules also
la.id down the powers and duties of the President,
•
•
•
(1) S.C.R.
SUPREME COURT REPORTS 161
Secretary, Financial Secretary and Joint Secretary.
One of the rules said that the office of the Secretary of the Board shall, as far as possible, vest
in the lineal descendants of Hakim Mohammad
Ajmal Khan. Hakim Moh'l.mmad Jamil Khan,
son of Hakim Mohammad Ajmal Khan and peti·
tioner no. 2 before us, was the first Secretary of
the Board.
In the year 1948 Shri Rameshwar Dayal, the
then Collector of Delhi, and Dr. Yudhvir Singh
the then President of the Delhi Municipal Com·
mittee, and certain other persons were eleoted
as members of the Board. Dr. Yudhvir Singh
was elected President and one Shri Mool Chand
Gagerna was appointed Joint Secretary: Soon
after
the
elections
in
1948,
a
struggle
ensued
between
different
~oups
of
members for obtaining control of the Board
and
the
college,
and
for
posseBBion
of
the Hindustani Dawakhana.
Certain criminal
proceedinjls followed. On October 18, 1949, a suit
was brought in the court of the senior Subordinate
Judge, Delhi under s. 92 of the Code of Civil
Procedure against the Secretary and 31 members
of the Board. In. that suit an application was ma.de
for the appointment of a receiver and on October
19, 1949, the Subordinate Judge appointed two
local advocates as joint receivers with plenary
powers. These receivers took poBBession of the
Dawakhana and the college between October 19 and
23, 1949. When the suit was still pending, the Delhi
State Legislature passed an Act called the Tibbia
College Act, 1952 (Delhi Act No. 5 of 1952), herein·
after referred to as the impugned Act. This Act.
came into force on October 10, 1952. The constitu·
tional validity of the Act is the principal question
for decision on . this writ petition and we shall
presently refer to the provisions thereof. We may
only state here that by s. 9 of the impugned Act,
the Board stood diBBolved and all property, movable
and immovable, and all right.a, powel'B and privileges
JIMJ
l'MB..n of
T"""''• A"'""""
ond Unani Tibia
c.u., •• Dtlii
v.
Tiii Stall of 1"
-·
S.K.DosJ.
J96J
T,,;a-d of
T nutus, .A_,.,.,&
•ti Unani Tibi1'
<AU.gt, DllJU
v.
T Ill St.z. of Dtllzi
S. I(. D .. J.
162 SUPREME OOURT REPORTS [1962] SUPP.
of the Board vested in a new Board constituted
under the Act. This new Board is called the Tibia.
College Board 1md we shall refer to it as the new
Board. After tho passing of the impugned Act,
the suit instituted before the Subordinate Judge,
Delhi was withdrawn. On t.he withdrawal of the
suit, an application was made for making over
possession of the properties to tho new Board. That
application was allowed in spite of the objection of
petitioner no. I.
Petitioner no. I unsuccessfully
moved the High Court of Punjab against that
order.
Thereafter, petitioner no. I moved this Court
under Art. 32 of the Constitution for the issue of a
writ restraining the State of Delhi and the newly
constituted Board under the impugned Act, the
State from enforcing th9 provisions of the impugned
Act and the new Board from exercising any functions thereunder. The respondents to the petition
raised a. number of preliminary objections, and on
December 13, 1954, the writ petition was withdrawn.
This was followed by some amendments of the rules
of the Board and it is stated on behalf of the
petitioners that a fresh election was held in accordance with the amended rul011 on January 6, 1955.
On January 11, 1955, the Managing Committee
passed a. resolution authorising the Secretary to
institute a proceeding in this Court to enforce the
funds.mental rights of petitioner no. I. The prE>sent
petition was then filed on Mnrch 14, 1955, in pursuance of tha.t resolution. The petition wa.s subsequently a.mended in the manner already indicated
Ly us. The Sta.to of Delhi a.nd the new Boa.rd are
the respondents to the prcl!<'nt petition.
The lea.med Advocate for the petitioners has
challenged the validity of the Act on two ma.in
grounds. Bia first ground ia that the Delhi Stato
Legislature ha.d no legi~lative power or competence
to enact the impugned Act, which must on that
ground be declared invalid and inoperative. The
second ground proceeds on the footing that assuming
'.
•
•
(1) S.C.R.
SUPREME COURT REPORTS
163
the Delhi State Legislature had power to enact
the impugned Act, the Act is bad because its several
provisions violate the fundamental rights guaranteed to the petitioners under Arts. 14, 19 and 31 of
the Constitution. Two subsidiary points have also
been urged before us, one to the effect that the
Delhi State Legislature could not by the impugned
Act
over-ride the provisions 1 of the Societies
Registration .Act, 1860 which is a Central Act, and
the other to the effect that the Delhi State Legislature acted mala fide in passing the impugned Act.
We shall presently deal with these arguments
in the order in which we have stated them. It is
necessary to state here, howtiver, that a preliminary
objection similar to the one urged against the'
·previous petition was also urged in respect of the
present petition. The learned Solicitor General
appearing on behalf of the respondents has urged
that by reason of the failure of the members to pay
the annual sub8cription in time, all of them ceased
to be members in 1950-1951; therefore, the elections
held in 1955 were of no effect there being no one
competent to elect; and the Board as a Board
ceased to exi3t before 1955 and neither petitioner
no. 1 nor petitioner no. 2 could maintain the
present writ petition. Some of the affidavits made
on behalf of the parties containlng averments with
regard to the payment or non-payment of subscription particularly in the years 1949-50 and 1950-51
were read, and Ex. B series which were the cash
books of the years 1951 to 1954 were also placed
before us. On one side there is the averment on
behalf of the respondents that no subscriptions were
paid before the due date for the years 1949-50 and
1950-51 by any of the members. As against this,
it is stated on behalf of the petitioners that
petitioner no. 2 and some of the other members
paid their subsc~iption to the Financial Secretary
for the years 1949-50 and 1950-51. An affidavit
made by the then Financial Secretary was also
placed before us. From a pemHal of the affidavits
1951 -
TluBoar4""
T mtees, A.J117Wdic
and Unani Tibia
Col/111, D1lhi
v.
PIN Slal1 of D1llii
S.K. D.,J,
164 SUPREME COURT REPORTS [1962) SUPP.
1~1
71wB..,'•f
Tnui.u,~
'°" U_,; Tobi•
O>U.g1, IH/Jti
and the documente filed it appeared to us that the
question being one of disputed facts could not be
1a.tisfactorily decided on the materials placed before
us. We, therefore, thought it proper and convenient
to consider the legal points urged as regards the
constitutional validity of the impugned Act and of
••
'l'M St.u of D.W
S.K. DosJ.
the action taken thereon.
Now, we take up the first argument advanced
on behalf of the .petitioners. This argument has
been put in the following way. The State of Delhi
became a Part C State on the coming into force of
the Constitution of India.. Under Art. 239 of the
Constitution as itthen stood, a Part C State was to
, be administered by the President acting, to such
extent as he thought fit, through a Chief Corr.miss·
ioner or a Lieutenant-Governor to be appointed by
him or through the Government of a neighbouring
State. .Article 240 of the Constitution enabled
Parliament by law to create or continue for any
Part C State a body, whether nominated, elected or
partly nominated and partly elected, to fun<'tion as
a Legislature for the State. By virtue of the power
conferred by Art. 240, Parliament enacted the
Government of Part C States Act, 1951 (Central Act
49 of 1951 ), by which a Legislative Assembly was
constituted for some of the Part C States including
one for Delhi. Section 21 of the said Act laid down
the extent of legislative power of the Legislative
Assembly. This section said . inter alia that the
Legislative Assembly of a Part C State may make
laws for the whole or any part of the State with
respect to any of the matters enumerated in the
State List (List II) or in the Concurrent List (List
ill). There was an exception provided with regard
to the Legislative Assembly of the State of Delhi
in respect of public order, police etc., which is not
relevant for our purpOBe. Section 22 said that if
any provision of a law made by the Legislative
.Aseembly of a Part C State was repugnant to any
provision of a law made by Parliament, then the
I •
(1) S.C.R. SUPREME COURT REPORTS
165
law made by Parliament, whether passed before or
after the law made by the Legislative Asst-mbly of
the State, shall prevail and the law made by the
Legislative Assembly of the State shall, to the
extent of the repugnancy, be void. There is an
Explanation to the section which is not 'relevant
for our purpose and need not be read. The point
which the learned Advoeate for the petitioners has
emphasised is that under s. 21 aforesaid, the extent
of the legislative power of the Delhi State Legislature was limited to the making of laws for the
whole or a,ny part of the Delhi State with respect
to any of the matters enumerated in the State Lis~
or in the Concurrent List of the Seventh Schedule
to the Constitution. Now, item 32 of the State
List (List U) is in these terms:
"32. In corporation, regulation
and
winding up of corporations, other than those
specified in List I, and universities, un-ineorporated trading, literary, scientific, religious
and other societies and associations; co-opera·
tive societies."
Items 43 and 44 of the Union List (List I) are in
these terms:
"43.
Incorporation, regulation and winding up of corporations, including banking,
insurance and financial corporations but not
including co-operative societies.
44.
Incorporation, regulation and winding up of corporations, whether trading or
not, with object.a not confined to one State,
but not including universities."
The argument of the learned Advocate for the
petitioners is this. The old Board which was registered under the Societies Registration Act, 1860
and is petitioner no. 1 before us, was a corporation,
whose objects were not confined to the State of
Delhi. Therefore, any legislation with regard to
it would fall under item 44 of List 1 and not under
1961
Tiu Board of
Trustees, A,yurvedic
ond Unani Tihia
College, Delhi
••
Thi State of Delhi
S.K.Da..J.
1P61
11't BatUdof
Tnutus, Aμt-tdic
and U""11i Tibia
Col,,,,, Dtllii
V.
TM Stat, of Delhi
S. IC DGJ J.
166 SUPREME COURT REPORTS [196:2) SUPP.
item 32 of List II. This argument consists of two
parts-first, tha.t the old Boa.rd was a cnrpuration,
and, secondly, that its objects were not. confined to
one State. The learned Advocate m;;vs that that
being the position, the Delhi State ]j,~islaturc ha<l
no legislative competence to make the impugned
legislation which went b~yond the cxlcnt of its
legislative power w1<lcr s. 21 of Act 40 uf HJ51. It
is worthy of note here that if the Board wore not
a corporation, then the impugned legislation would
not fa.II under item 44 of List I at all; alternatively,
if the Boa.rd were a. curporati•_in but its objects
were confined to only one Stak, viz. th.: ~tatc of
Delhi, then again item 44 would not be attracted.
On behalf of the respondents there is a threefold
reply to the argument stated above: firsLly, that
the Board was not a corporation; secondly, its
objects did not extrmd beyond the ~tale of Delhi;
and thirdly, the impugned lcgidL>tion is support,iblc
under item I I of List II rclatiniz to "E<luca.tion" and
item 28 of the Concurrent List (List III) relating to
"Charities and ~haritable institution".
The first and foremost question i • whether
the old Board was a corporation in the legal Bense
of that word. What is a Corporation? Corporations may he <lividL'<l into two main classeH, namely,
corporations a.ggrr,gatc and corporations sole.
We
arc not concerned in the present case with corporation solP.
"A Corprm•tion aggrcgaui bas been
defined a.a a collection of individual,; united into
one body under a. special denomination, having
perpetual succe&1ion under an artificial form, and
vested by the policy of the la.w with the capacity of
acting in several respects a.s an individual, particularly of ta.king and granting property, of contmcting obligations and of suing a.nd being sued, of
enjoying privileges and immunities
in common,
and of exercising a variety of political rights, moro
or leBB extensive, according to the design of its
institution, or the powers conferred upon it, either
at the time of its croation or at l\ny subsequent
(1) S.C.R.
SUPREME OOURT REPORTS
167
period of its existence". (Halabury's Laws of
England, 3rd Edn. Vol. 9, p&ge 4.) A corporation
aggregate has therefore only one capacity, namely, its
corporate capacity. A corporation aggregate may be
a trading corporation or a non-trading corporation.
The usual examples of a trading corporation are
(1) charter companies, (2) companies incorporated
by special acts of parliament, (3) companies registered under the Companies Act, etc. Non-trading
corporations are illustrated by ( 1) municipal corporations, (2) district boards, (3) benevolent institutions, (4) universities etc.
An essential element
in the legal conception of a corporation is that its
identity is continuous, that· is, that the original
member or memberR and his or their successors are
one. In law the individual corporators, or members,
of which it is composed are something wholly rlilfe.
rent from the corporation itself; for a corporation
is a legal persona just as much as an individual.
Thus, it has been held that a name is essential to a
corporation; that a corporation aggregate can, as a
general rule, only act or expreSB its will by deed
under its common seal; that at the present day in
England a corporation
is created by one or
other of two methods, namely, by Royal Charter
of incorporation from the Crown or by the authority of Parliament that is to say, by or by virtue of
statute. There is authority of long standing for
saying that the e880nce of a corporation consists in
(!)lawful authority of incorporation, (2) the persons
to be incorporated, (3) a name by which the persons are incorporated, (4) a place, and (5) words
sufficient in law to show incorporation. No particular words are necessary for the creation of a corporation; any expreSBion showing an intention to
incorporate will be sufficient.
The learned Advocate for the petitioners has
referred us to various provisions of the Societies
Registration Act, 1860 and has contended that the
I!JdI
The Board of
T rustns, AywD1dic
and U""1ri TiMa
Coll1p, Delhi
v.
The State of D1lhi
S.Ir. D.,J.
1(;61
'1'/u B°"'d of
Tnutus, A._,urz:ttii'
nJ Und&i Tibia
C.U111, Drlhi
••
1M Sw. •f Dtlhi
B. Jr. D"' J.
168 SUPREME OOURT REPORTS [l!J62J SUPP.
result of these provisions wa.a to make tlic :Board a
corporation on registl'ation. It _is ncccssa.ry now
to rea.d some of the provisions of that Act. The
Act is entitled an Act for the registration of literary, scientific and charitable societies a.nd the
preamble states tha.t it wa.s enacted for improving
tho legal condition of societies established for the
promotion of literature, science, or the fine a.rte, or
for the diffusion of useful kno" ledge etc., or for
charitable purposes. Section l of the Act states
that any seven or more persona associated for :my
literary, scientific, or charitable purpose, or for any
such purpose as is described in e. :W of the Act
may, by subscribing their names to a memorandum
of allllociation a.n<l
filing
the same with the
Registrar of ,Joint-stock Companies form themselves into a. society under the Act. Section 2 lays
down that the memorandum of association shall
contain and one of the particulars it must contain
is "the objects of the society''. Section 3 dsals
with regi,iitration and the fees payable therefor.
Sections 5 and 6 a.re important for our purpose and
should be read in full.
"5. The property, movable and immovable,
belonging to a society registered under this
Aot, if not vested in trustees, shall be deemed
to be vested, for the time being, in the governing body of such society, and in all proceedinga, civil and criminal, may be described &11
the property of the governing body of such
society by their proper title.
"6. Every society registered under this Act
may sue or be sued in the name of the prcsi·
dent, chairman, or principal secretary, or
trustees, a.s shall be determined by the rull'll
and regulations of the
society, and, ill
default of such determination, in the name of
suoh person as shall be appointed bv tho
governing body for the ocCDsion :
•
(1) S.C.R. SUPREME COURT REPORTS
169
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 of the trustees thereof,
if on an application to the governing body
some other officer or person be not nominated to be the defendant."
Section 7 provides for non-abatement of suits or
proceedings and the continua.nee of such suits or
proceedings in the name of or against the successor
of the person by or against whom the suit was
brought. Section 8 says that if a judgment is recovered against a person or officer named on behalf
of the society, such judgment shall not be put in
foroe against the property, movable or immovable,
or against the body of such person or officer, but
against the property of the society. Section IO
provid\ls that in certain circu.msta.nces mentioned
therein a member of the· society may be sued by
the society; but if the defendant shall be sucJessful
in any such suit brought at the instance of the
society and shall be adjudged to recover his costs,
he may elect to proceed to recover the same from
the officer in whose name the suit was· brought, or
from the society. Sections 13 and 14 provide for
dissolution of societies and the consequences of
such dissolution. These provisions have also
an important bearing on the questions before us
and are quoted in full.
"13. Any number not.less than three-fifths
of the members of any society may determine
that it shall be dissolved, and thereupon it
ahall be dissolved forthwith, or at the time
then agreed upon, and all necessary steps
shall be ta.ken for the disposal and settlement
of the property of the society, its claims and
liabilities, a.ooording to the rules of the said
society applicable thereto, if any, and, if not
then as the governing body shall find expedient, provided that, in the event of any
191<1
The B1wd of
Trustees, Ayurvedic
and Unani 'l'ibia
College, Delhi
v.
The State of Delhi
S. K. Das J.
Ifl'JI
Th. B-dof
1"nutu1, Ayu•vtilic
and VNJJ1i T ibi1J
Coll1~1, Dtlhi
v.
Th. S.a11 of Dtlhi
S. Jr. flu J.
170 SUPREME COURT REPORTS [1962] SUPP.
dispute arising among the said governing body
or the members of the soeiety, the adjustment
of its affairs shall be referred to the principal
court of Original civil juriR<li..t inn of tho district in which the chief lmilding of the society
is
~ituat<J, and the Court shall make such
order in the matter as it shall deem requisite:
Provided that no society shall be diSBolved unless three-fifths of the members shall
have cxpr!'BBed a wish for such dissolution by
their vote~ delivered in person, or by proxy,
at a general meeting convened for the purpose:
Provided that whenever any Government
is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved, without tho consent of the Government
of the state of registration.
14. If upon the dissolution of any society
registered under this Act there shall remain,
after the l!Stisfaction
of all its debts and
liabilities, any property whatsoever, the same
shall not be paid to or distributed among tho
members of the said society or any of them,
but shall be given to some ot,her society, to be
determined by tho votes of not less than throofifths of the members present personally or by
proxy at the time of the diMolution, or, in
default thereof, hy such Court as aforesaid:
Provided, however, that this clause ~hall
not apply to any society which shall have
been founded or established by the contributions of shareholders in the nature of a Jointstock Company."
Now, the question before us iii-regard being
had to the aforesaid provisions-was the Board a
corporation? Our conclusion is that it was not.
The most important point to be noticed in this
connection is that in the various provisions of the
(1) S.C.R.
SUPREME COURT REPORTS
171
Societies Registration Act, 1860, there are no
aufficient words to indicate an intention to incorporate , on the contrary, the provisions show that
th.ere was a.n absence of such intention. Section 2
no doubt provides for a name as also for the objects
of the society. Section 5, however states that the
property belonging to the society, if not vested in
trustees, shall be deemed to be vested in the
governing body of the society and in all proceedings,
civil and criminal, the property will be described as
the property of the governing body. The section
talks of property belonging f,o the society; but the
property is vested in the trustees or in the governing
body for the time being. Tlle expression "property
belonging to the society" does not give the society
a corporate status in the matter of holding or
acquiring property, it merely describes the property
which vests in the trustees or governing body for
the time being. Section 6 gives the society the
right to sue or be sued in the name of the president,
chairman etc. and s. 7 provides that no suit or
proceeding in a civil court shall abate by reason of
the death etc.' of the person by or against whom the
suit has been brought. Section 8 again says that
any judgment obtained in & suit brought by or
against the society shall b!l enforced against it. It
has been submitted before us that ss. 6, 7 a.nd 8
clothe the society with a legal personality and a
perpetual
succession; and s. 10 enables
the
members of the society to be sued as stra.ngers, in
certain circumstances, by the society, and the costs
awarded to the defendant in such a suit may be
recovered, at his election, from the officer in whose
na.me the snit was brought. Dealing with very
similar provisions (ss. 7, 8 and 9) of the English
Trade Union Act, 1871 (34 and 35 Viet, o. 31) Lord
Lindley said in the celebrated case of Taff Vale
Railway v.
Amalgamated Society
of
Railway
Servants (').
(I) (1901] A. C. 426.
1961
TM Board of
Trwtus, AyurvedU
.tuI Unani Tibia
College, D1lhi
y,
The Stat1 of Delhi
S.K.DasJ.
1161
TJo. Boa-« •f
'l'rwtu•, A.JUrt-edi.c
tttrtl f./nmri 1·thi•
Colu11, D1/lti
y,
Tiu Buu of Ddhi
S. Ir. DuJ.
l72 SUPREME COURT REPORTS (1962) SUPP.
"The Act does not in express terms say
what use is to be ma.de of tho name under
which the trade union is registered and by
which it is known. But a trade union which
is registered under the Act must hive a name
...... It may acquire property, but, not being
incorporated, recourse is had to the old wellknown machinery of trustees for acquiring and
holding such property, and for suing and
being sued in respect of it (88. 7, 8, !l). The
The property so held is, however, the property
of the union; the union is the beneficial owner .
...... The Act appears to me to indicate with
sufficient clearness that tho registered name
is one which may be used to denote the union
as an unincorporated society in legal proceed·
ings as well a.s for
businoSB and other
purposes. ,,
In •Trade Union La.w' by N. A. Citrine (1950
edn.) to which the
l~rned Advocate for the
petitioners ha.s referred, it is stated at p. 143 :
"The object of this section (s. 9) was to
provide a method of enabling legal prooeedings
to be brought in respect of the property of a
registered trade union. Since the legislature
had no intention of giving such unions
corporate status with power to hold property
and to sue and be sued in their registered
names, it was nooeBBary to provide for the
vesting of their property in trustees and to
permit them to bring or defend legal proceedings in respect of that property on the union's
behalf. 8ection 8 of this Act, having provided
for the vesting of the union's property in its
trustees, the present section supplements that
soction by empowering the trustees to bring
or defend, on the union's behalf, civil or
criminal proceedings concerning its property."
In Bonaor v. M'U8icia118' Union( 1) the position
(I) (L. R.) 1956 A. C. Jo+.
..
(1) S.C.R.
SUPREME COURT REPORTS 173
of a registered trade union in England came under
consideration of the House of Lords in :an appeal
from the Court of Appeal. On a review of earlier
decisions including the decision in Taff Vale Railway
v. Amalgamated Society of Railway Servant-'('),
Lord Macdermott, Lord KE•i1h of Avonholm and
Lord Somervell of Harrow held that a registered
· trade union was not a juristic person distinguishable
at any moment of time from the members of which
it was composed. After referrin<:?; to the various
provisions of the Trade Union Act, 1871 and some
of the earlier decisicns bearing on the question Lord
MacDermott said :
"I base this opinion primarily on the
statutes. The more closely they are examined
the clearer it seems to be that the legislature,
though minded to bestow upon registered
unions some of the gifts and attributes of legal
personality, had no intention of doing more
and was, indeed, averse to the idea of going
the whole length and making those unions
new creatures, distinct in law from their
membership, and
fundamentally different
from the "combination" of persons which the
definition requires all trade unions to be."
Lord Morton of Henryton and Lord Porter, who
expressed the minority view, held that a registered
trade union though not an incorporated body, was
yet capable of entering into contracts and of being
sued as a legal entity, distinct from its individual
members.
It is clear from the aforesaid decisions that
provisions similar to the provisions of ss. 5, 6, 7
and 8 of the Societies Registration Act, 1860 were
· held not to show any intention to incorporate; on
the contrary, the very resort to the machinery of
trustees or the governing body for the time being
acquiring and holding the property showed that
there was no intention to incorporate the society or
(lJ [1901] A. C. 426.
1161
Th.Botndof
Trustees, AyurueJic
and Unani Tibia
College, Delhi
v.
The Stale of Del Iii
8. }(,Das J.
Illlll
71>1 Bo<ud of
Tnultts, Ayurrtdic
ad Utfalli Tibia
Colle11, D1Uti
••
Tk Sta11 of DtlAi
S. K. Dtu J.
174 SUPREME OOURT REPORTS [l962J SUPP.
union so 611 to give it a corporate oapacity for the
purpose of holding a.nd aoGuiring property. It
appears to us that the legal position is exactly the
same with regard to the provisions in Bti. 5, 6, 7 and
8 of the Societies Registration Act, 1860. They do
not show any intention to incorporate, though they
confer certain privileges on a registered society,
which would be wholly unnecessary if the registered
society were a corporation. Sections 13 and
14 do not carry the matter any further in
favour of the petitioners. Section 13
provides
for dissolution of societies and adjustment of
their
affairs. It says
in
effect
that
on
diSBolution of . a. society neccBSary steps sha.11 be
taken for the disposa.l a.nd settlement of the property of the sooiety, its claims and liabilities,
according to the rules of the society; if there bo no
rules, then· as the govering body shall find it expedient provided that in the event of any dispute
arising among the said governing body or the
members of the ea.id society, the adjustment of the
affairs shall be referred to tho Court. Hert> again
the govering body is given a. legal power somewhat
distinct from that of the society itself; because
under s.16 the governing body shllll be the governors, council, directors, committee, trustees or other
body to whom by the rules and regulations of the
society the management of its a.lfairs is entrusted.
We have, therefore, come to the conclusion
that the provisions afroesaid rlo not establish the
main eSBential characteristic of a. corporation aggregate, namely, that of an intention to incorporate
the society. WI'< may further observe that the scheme
and provisions of the Societie,s Registration Act,1860
are very simila.r to those of the Friendly Societies
Act, 1896 (59 and 6') Viet. c. 25), as amended in
certain respects by subsequent enactments.