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2015 DIGILAW 2901 (MAD)

S. Nagamani v. District Registrar of Societies

2015-08-28

R.SUBBIAH

body2015
ORDER Writ Petition (MD).No.15288 of 2012 has been filed praying for issuance of a writ of Mandamus, directing the respondents 1 and 2 not to consider Form Nos.VI and VII submitted by the private respondents 4 to 11. 2. Writ Petition (MD).No.2224 of 2015 has been filed praying for issuance of a Writ of Mandamus, directing the 1st respondent to conduct election for the Allampatti Devangar Mahajana Sabai, Virudhunagar, (Registration No.12 of 1966) based on the petitioners' representation dated 02.02.2015 as per the Tamil Nadu Societies Registration Act. 3. The petitioner in Writ Petition (MD).No.15288 of 2012 viz., S.Nagamani was the Secretary of Allampatti Devangar Maha Jana Sabai, Virudhunagar District. He filed the Writ Petition (MD).No.15288 of 2012 praying for issuance of a writ of Mandamus, directing the respondents 1 and 2 not to consider Form Nos.VI and VII submitted by the private respondents 4 to 11. Pending the writ petition, the petitioner S.Nagamani died on 11.12.2014. Hence, one S.Shanmugam, who was the President of Ambalakarar of Allampatti Devangar Maha Jana Sabai has filed M.P.(MD).No.1 of 2015 to substitute him as the petitioner in the place of the deceased petitioner-S.Nagamani. 4. But, the said Substitution Petition was opposed by the respondents stating that the prayer in the writ petition itself has become infructuous since the tenure of the officer bearer has come to an end by March-2015 itself. But, the learned counsel for the proposed petitioner submitted that the issue involved in W.P.(MD).No.15288 of 2012 has not become infructuous, since the issue involved in W.P.(MD).No.15288 of 2012 will have a bearing in the subsequent Writ Petition (MD).No.2224 of 2015; thus, he sought for his substitution in the place of the deceased petitioner. 5. In view of the submissions made on either side, it would be appropriate to decide the substitution petition along with the main writ petitions. 6. The brief facts, which are necessary to decide the writ petitions, as culled out from the affidavits and counter affidavits, are as follows:- 6-1. Allampatti Devangar Mahajana Sabai is a registered Body. On 25.05.2003 the deceased petitioner S.Nagamani was elected as Secretary unanimously by the general body of the said Sabai. One V.Natarajan was also unanimously elected as President and team of executive committee was also elected unanimously. The said team assumed the office on 01.06.2003. Allampatti Devangar Mahajana Sabai is a registered Body. On 25.05.2003 the deceased petitioner S.Nagamani was elected as Secretary unanimously by the general body of the said Sabai. One V.Natarajan was also unanimously elected as President and team of executive committee was also elected unanimously. The said team assumed the office on 01.06.2003. Rule 16 of the Tamil Nadu Societies Registration Rules mandates that the register of members specified in Section 14(1) shall be filed in Form VI. Rule 17 provides for filing of a copy of registered members and furnishing change of members or committee as provided in Form VII. Rule 22 mandates to place the documents specified under Section 16(3)(a) of the Act before the General Body Meeting within six months after expiry of the financial year, to which the account relates. The said rule also mandates a period of six months after the date of such General Body Meeting for filing the document and declaration specified under Section 16(3)(b) of the said Act. Accordingly, Form VI and VII were filed before the 1st respondent. On 18.06.2004 the 1st respondent, after accepting Form VI and VII issued proceedings of taking on file the entire document including the change of office bears of the Society, in which the deceased petitioner was unanimously elected as Secretary. Based on this, the District Education Officer at Virudhunagar on 22.06.2004 approved the Education Agency of Sowdambigai Higher Secondary School, which is run by the said Mahajana Sabai. The Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 provides for the school committee and its functions. The election of the office bearers by the election conducted during the 2003 was subject matter of a civil dispute in O.S.No.153 of 2003 on the file of the learned District Munsif Court at Virudhunagar and it was subsequently dismissed as infrunctuous. Pending the said suit, there was no interim order. Consequently, the elected team discharged their respective functions. 6-2. The proceedings of the District Registrar taking on file the Form VII submitted by the deceased petitioner was challenged along with the approval of the School Committee by the District Educational Officer in W.P.Nos.19691/2004, 19692/2014, 21349/2004 & 21350/2004 respectively before the Principal Bench of this Court. Pending the writ petitions, the petitioners therein obtained interim orders. This necessitated the deceased petitioner to file petition for vacating the interim order and the same was also allowed partly. Pending the writ petitions, the petitioners therein obtained interim orders. This necessitated the deceased petitioner to file petition for vacating the interim order and the same was also allowed partly. Pending those writ petitions, the petitions were filed seeking for appointment of Advocate/Commissioner for the purpose of conducting election of the office bearers of the said Sabai etc. After hearing, orders were passed by this Court on 21.04.2007 by appointing Advocate Commissioner for conducting election for the post of office bearers etc. Thereafter, election for the said Sabai was conducted and in the said election, the deceased petitioner was elected as the Secretary and one S.Subramaniam was elected as President. The report of the Advocate Commissioner was challenged by the earlier writ petitioners by way of filing Miscellaneous Petitions and a further direction was also sought for by them for fresh election in terms of the order dated 21.04.2007. But, the said Miscellaneous Petitions were dismissed on 21.07.2007 by the learned Single Judge of this Court. However, challenging the order dated 21.07.2007 passed by the learned Single Judge, a Writ Appeal No.1018 of 2007 was filed and the Hon'ble Division Bench of this Court, by order dated 08.08.2007, dismissed the said writ appeal and while dismissing the Writ Appeal, it was also observed by the Division Bench that there was no impediment for the newly elected office bearers, as declared by the Advocate Commissioner, to take charge and function and the same shall be subject to the final result of the writ petition. Accordingly, the newly elected Office bearers assumed office in the year 2007 and discharged their respective obligation. 6-3. Subsequently, elections for the years 2009 and 2012 were also conducted by the Advocate Commissioner Mr. N.Rajachandrasekaran. As for as the 2009 election is concerned, it was transparent, in accordance with procedure and the secrecy of the ballot papers were maintained while voting. But, as for as the 2012 election is concerned, the said Advocate Commissioner had flouted the well settled procedure for conducting the election held in May-2012. In the 2012 election, there was lot of violations of the procedures. In the 2012 election, the deceased petitioner contested for the post of Secretary and he lost by a margin of nearly 37 votes. In the 2012 election, there was lot of violations of the procedures. In the 2012 election, the deceased petitioner contested for the post of Secretary and he lost by a margin of nearly 37 votes. The election was conducted on 06.05.2012 and the private respondents viz., respondents 4 to 10 in W.P.(MD).No.15288 of 2012 were declared as elected by the Election Officer. Challenging the 2012 election results, two of the voters 1)A.Subramaniyan & 2) M.Ramasamy filed a civil suit before this Court in O.S.No.166 of 2012 and the same was transferred and renumbered as O.S.No.127 of 2012 on the file of the District Munsif Court, Virudhunagar. The prayers made the plaintiffs in the said suit are extracted hereunder:- “1) by declaring that the election of the office bearers of the Allampatti Devangar Mahajana Sabhai (Executive Committee, School Committee, Balar Palli) as null and void and against the bye-laws of the Society, orders dated 21.04.2007 passed by the Hon'ble High Court Judicature of Madras in Writ Petition in W.P.M.P.No.17290 to 17292 of 2006 in W.P.Nos.19691, 19692 and 21349 of 2004, consequently to grant a decree of permanent injunction restraining the defendants 3 to 26 from in any way assuming as the office bearers of the respective committee for which they are alleged to be elected on 06.05.2012. 2) To grant a decree of Permanent injunction restraining the defendants 3 to 26 from in any way interfering with functioning of the activities of the defendants 1 and 2 as the existing office bearers. 3) to grant such other reliefs this Honourable Court may deem fit and proper in the circumstances in this case and render justice.” Pending the said suit, no interim order was granted by the Court. 6-4. In such a situation, the deceased petitioner filed the present writ petition viz., W.P.(MD).No.15288 of 2012 seeking for a direction to the official respondents not to consider Form Nos.VI and VII submitted by the private respondents 4 to 11, who have been elected as Officer bearers of the said Sabai in the election conducted on 06.05.2012 for the period 2012-2015. 6-5. Along with W.P.(MD).No.15288 of 2012, the petitioner filed M.P.(MD).No.1 of 2012 seeking to grant an order of stay of all further proceedings pursuant to the proceedings of the 1st respondent vide No.4850/E/2012 dated 14.08.2012 by accepting and taking on file Form Nos.VI and VII relating to the Allampatti Devangar Maha Jana Sabai. 6-5. Along with W.P.(MD).No.15288 of 2012, the petitioner filed M.P.(MD).No.1 of 2012 seeking to grant an order of stay of all further proceedings pursuant to the proceedings of the 1st respondent vide No.4850/E/2012 dated 14.08.2012 by accepting and taking on file Form Nos.VI and VII relating to the Allampatti Devangar Maha Jana Sabai. The petitioner has also filed M.P.(MD).No.2 of 2012 seeking for grant of interim injunction restraining the respondents 4 to 11, their men, servants, agents or anybody claiming through them from in any manner proceeding further with Form Nos.VI and VII relating to the Allampatti Devangar Maha Jana Sabai, pending disposal of the writ petition. 6-6. This Court by order dated 29.11.2012 in M.P. (MD).Nos.1 & 2 of 2012 in W.P.No.15288 of 2012 has granted an order of status quo. 6-7. Pursuant to the order of status quo passed by this Court, the District Registrar of Societies has kept the matter pending by maintaining status quo. Under such circumstances, the election period of 2012-2015 has come to an end by March-2015 itself. The petitioner in W.P.(MD).No. 15288 of 2012 died on 11.12.2014. Now, the 5th respondent in W.P.(MD).No.2224 of 2014 has been appointed as Election Officer to conduct election for the said Sabai for the period 2015-2018, on the basis of the Executive Committee Meeting held on 25.01.2015 and the same was communicated to the 5th respondent. The 5th respondent, Election Officer, has issued a election notification on 03.02.2015 fixing the date for election as 01.03.2015 between 10.00 am to 4.00 pm to be held in Sowdambigai Higher Secondary School campus, Allambatti, Virudhunagar. The date fixed for receiving the nomination forms was from 09.02.2015 to 16.02.2015. Similarly, 18.02.2015 was fixed as the date for submitting the filled-in nomination forms. For scrutinizing the nominations it was fixed to be done from 19.02.2015 till 20.02.2015 by the Election Officer. Likewise, 21.02.2015 was fixed as the date for withdrawal of nomination forms. The Election Officer had also fixed the date as 21.02.2015 for publishing the list of candidates contesting in the election. On the basis of the election notification, 25 nominations were received by the 5th respondent for the 25 posts in respect of the Sabai. On scrutiny, the 5th respondent has accepted the nominations submitted to him. However, as there was only one member contesting for each post, there was no contest between them. On the basis of the election notification, 25 nominations were received by the 5th respondent for the 25 posts in respect of the Sabai. On scrutiny, the 5th respondent has accepted the nominations submitted to him. However, as there was only one member contesting for each post, there was no contest between them. Hence, the 5th respondent, having accepted the nominations, had informed that there was no necessity for conducting an election on 01.03.2015 as there was no contest for the post and the same could be declared on 21.02.2015. 6-8. While things being so, in the meanwhile, the petitioners in W.P.(MD).No.2224 of 2015 have sent a representation dated 02.02.2015 to the District Registrar of Societies, Virudhunagar, for the purpose of conducting free and fair election. Since the petitioners came to know that the respondents 3 to 5 illegally published the election schedule in the Tamil Daily on 05.02.2015, the petitioners filed the present Writ Petition viz.W.P.(MD).No.2224 of 2015 seeking to direct the District Registrar of Societies to conduct the free and fair election for the Sabai. Along with W.P.(MD).No.2224 of 2015, the petitioners have filed M.P.(MD).No.3 of 2015 seeking to stay all further proceedings pursuant to the election common schedule dated 03.02.2015 for conducting election to the said Sabai, as published by the 5th respondent in Tamil Daily dated 02.02.2015 in Dinathanthi, pending disposal of the writ petition. 6-9. This Court, by order dated 26.02.2015 has granted interim stay in M.P.(MD).No.3 of 2015 in W.P.(MD).No. 2224 of 2015. Hence, the respondents 2 to 4 have filed a petition in M.P.(MD).No.4 of 2015 seeking to vacate the interim stay granted by this Court. 6-10.That apart, the petitioners have filed M.P. (MD).No.5 of 2015 in W.P.(MD).No.2224 of 2015 seeking to amend the prayer. Hence, the respondents 2 to 4 have filed a petition in M.P.(MD).No.4 of 2015 seeking to vacate the interim stay granted by this Court. 6-10.That apart, the petitioners have filed M.P. (MD).No.5 of 2015 in W.P.(MD).No.2224 of 2015 seeking to amend the prayer. The amendment in the prayer sought for by the petitioners is extracted hereunder:- “It is therefore prayed that this Hon'ble Court may be pleased to issue a Writ of Declaration or any other appropriate Writ, order or Direction, in the nature of Writ declaring the election notification dated 03.02.2015 issued by the 5th respondent in the Daily Thanthi dated 05.02.2015 as null and void and abinitio illegal and consequently direct the 1st respondent to conduct Allampatti Devangar Mahajana Sabai, Virudhunagar, (Registration No.12 of 1966) election based on the Petitioners' representation dated 02.02.2015 as per the Tamil Nadu Societies Registration Act and pass such further or other orders as this Hon'ble Court may deem fit and proper in the above facts and circumstances and thus render justice.” Instead of “It is therefore prayed that this Hon'ble Court may be pleased to issue a writ of Mandamus or any other appropriate Writ order or Direction, in the nature of Writ directing the 1st respondent to conduct Allampatti Devangar Mahajana Sabai, Virudhunagar, (Registration No.12 of 1966) election based on the Petitioners' representation dated 02.02.2015 as per the Tamil Nadu Societies Registration Act and pass such further or other orders as this Hon'ble Court may deem fit and proper in the above facts and circumstances and thus render justice.” 7. When the matter is taken up for consideration, the learned counsel Mr.A.Sivaji appearing for the petitioners submitted that on earlier occasion, when the proceedings of the District Registrar in accepting Form VII in respect of the election conducted for the year 2003, was challenged in W.P.Nos.19691, 19692 & 21349 of 2004, the learned Single Judge of this Court had appointed an Advocate Commissioner for conducting the election for the Office Bearers of the said Sabai. Thereafter, the Advocate Commissioner conducted the election. Even for the subsequent periods also, the elections were conducted only by appointing an Advocate Commissioner. Thereafter, the Advocate Commissioner conducted the election. Even for the subsequent periods also, the elections were conducted only by appointing an Advocate Commissioner. When the said order of the learned Single Judge was challenged before the Division Bench of this Court in W.A.No. 1018 of 2007, the learned Division Bench of this Court, by confirming the order passed by the learned Single Judge, dismissed the writ appeal. Thereafter, the Sabai had taken steps for amending the by-law and the amendment made in the by-law was also registered with the Registrar of Societies. As per the amended by-law, the election should be conducted by Commissioner not belonging to the Devagar Community; but the present election was conducted by the Advocate Commissioner, who belongs to the Devangar Community, which is against the amended by-law. Therefore, the Miscellaneous Petition No.5 of 2015 has been filed by the petitioners to declare the election notification dated 03.02.2015 issued by the 5th respondent in the Daily Thanthi dated 05.02.2015 as null and void and consequently to direct the 1st respondent to conduct Allampatti Devangar Mahajana Sabai, Virudhunagar, (Registration No.12 of 1966) election based on the Petitioners' representation dated 02.02.2015 as per the Tamil Nadu Societies Registration Act. 8. That apart, the learned counsel appearing for the petitioners would further submit that in the first writ petition viz., W.P.(MD).No.15288 of 2012 an interim order of status quo was granted by this Court as against the District Registrar to maintain the status quo with respect to accepting of Form VI & VII for the period 2012-2015. While so, the Sabai ought to have obtained the permission of this Court, before conducting the election for the year 2015-2018. 9. But, the learned counsel for the 5th respondent- Advocate Commissioner submitted that the first writ petition viz., W.P.No.15288 of 2012 has become infructuous since the election period for the years 2012-2015 has expired during March-2015 itself. So far as the second writ petition viz., W.P.No.2224 of 2015 is concerned, the prayer in the said writ petition is not maintainable because under Societies Registration Act, there is no provision to direct the District Registrar of Societies to conduct election for the Sabai. The amendment in the prayer sought for by the petitioner in W.P.No.2224 of 2015 is also not maintainable, since the 5th respondent, Election Officer, is not a statutory authority and he is a private individual. The amendment in the prayer sought for by the petitioner in W.P.No.2224 of 2015 is also not maintainable, since the 5th respondent, Election Officer, is not a statutory authority and he is a private individual. Therefore, the amendment sought for by the petitioners to the prayer in W.P.No.2224 of 2015 is also not legally sustainable. 10. The learned counsel for the other respondents have also made their submissions stating that the amended by-law was not approved by the 1st respondent so far and only if it is approved, the amended by-law will take effect; therefore, absolutely there is no impediment in the election conducted by the 5th respondent. 11. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. 12. The first writ petition viz., W.P.No.15288 of 2012 has been filed to direct the District Registrar of Societies not to accept Form Nos.VI and VII submitted by the private respondents. Even according to the learned counsel for the petitioner, the period in respect of the election for the years 2012-2015 has come to an end during March-2015 itself. Therefore, absolutely nothing survives in the first writ petition viz., W.P.No.15288 of 2012. Though the learned counsel for the petitioner relied upon number of judgments and submitted that the issue involved in W.P.No.15288 of 2012 will have a bearing in the second writ petition viz., W.P.No.2224 of 2015, in my considered opinion, absolutely there is no connection with regard to the issue involved in the first writ petition and the second writ petition, since the election period in respect of the first writ petition has already come to end. Hence, the Writ Petition No.15288 of 2012 is liable to be dismissed as infructuous. Consequently, there is no necessity for substituting the proposed petitioner in the place of the deceased petitioner. 13. So far as the second writ petition viz., W.P.No. 2224 of 2015 is concerned, as contended by the learned counsel for the respondents, absolutely there is no provision in the Tamil Nadu Societies Registration Act to direct the District Registrar of Societies to conduct the election for the Sabai. Similarly, as regards the amendment prayer, the 5th respondent, Election Officer, is a private individual and he is not a statutory authority and hence the prayer sought to be amended which is against the fifth respondent is also not maintainable. Similarly, as regards the amendment prayer, the 5th respondent, Election Officer, is a private individual and he is not a statutory authority and hence the prayer sought to be amended which is against the fifth respondent is also not maintainable. Though the learned counsel for the petitioner, by relying upon number of judgement, submitted that writ petition is maintainable as against the Registrar of Societies, I find from the judgments relied upon by the learned counsel for the petitioners that in those judgments, the prayers were made directly as against the District Registrar; that is not so in the present case. Therefore, the judgments relied upon by the learned counsel for the petitioners cannot be made applicable to the present facts of the case. 14. Further more, once election process commenced, normally Court cannot interfere with the same. In the present case, the writ petition has been filed after commencement of the election processes. Here election notification was issued under Section 25(2) of the Act 03.02.2015 and it was published in Tamil Daily on 05.02.2015. The writ petition has been filed only on 19.02.2015. In this regard, a reference could be placed in the judgment delivered by a Division Bench of this Court reported in 2005 Writ L.R. 733 [A.Babu Rao Vs. Bar Council of Tamil Nadu & another], wherein it has been held as follows:- “2. It is well settled by a series of decisions of the Supreme Court that once the election process has started the Court should not interfere, vide Anugrah Narain Singh Vs. State of U.P., (1996) 6 SCC 303 , Lakshmi Charan Sen Vs. A.K.M.Hassan Uzzaman, AIR 1985 SC 1233 , Boddula Krishnaiah Vs. State Election Commissioner, AIR 1996 SC 1595 , etc., 3. In our opinion although Art.329(b) of the Constitution only relates to the elections held for Parliament or the State Legislative Assemblies, the principle of that provision also applies to elections held under statutes such as Municipal Elections, Panchayat Elections, etc. Even regarding such elections, in our opinion, once the election process has commenced, the Court should not interfere until the election results are declared, and even then the Court can come into the picture only when an election petition is filed under the relevant statutory provision, or if there is no such provision for filing an election petition, then by filing a civil suit. Hence, a writ petition should not be entertained. It is well settled that writ is discretionary jurisdiction vide Chandra Singh Vs. State of Rajasthan, JT 2003 (SC) 20 (vide paragraph 42), R.Nanjappan Vs. District Collector, Coimbatore, 2005 WritL.R. 47, etc. Hence, in our opinion the High Court should not exercise its discretion under Article 226 of the Constitution once the election process has started, even though there may not be an express bar as in Article 329(b). 4. As observed by the Supreme Court in N.P.Ponnuswami Vs. Returning Officer, Namakkal, AIR 1952 SC 64 = (1952) 65 L.W. 760:- “It has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to the time schedule, and all controversial matters and all disputed arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.” 5. The same view has been repeated in Umesh Shivappa Ambi Vs. Angadi Shekava Basappa, AIR 1999 SC 1566 , Kalla Ramakrishna Vs. State Election Commission, 2005 (26) All India Cases page 764, etc. 6. The above principle has been repeatedly reiterated by the Supreme Court and yet it is unfortunate that many High Courts in this Country are interfering with the election process midway although the election results have not been declared. 7. Judicial discipline requires the High Courts to follow the decisions of the Supreme Court under Article 141 of the Constitution of India. 8. Since the Supreme Court has repeatedly held that High Courts cannot interfere with the election process once it has commenced, and can come into the picture only when the results thereof are declared, and that too by way of an election petition at the instance of the aggrieved person, or if there is no provision for filing such election petition then by way of a civil suit, we dismiss this writ petition as not maintainable.” The dictum laid down in the above said judgment is squarely applicable to the present facts of the case. Once the election process commenced, the same cannot be challenged by filing the writ petition. Therefore, the second writ petition is also liable to be dismissed. For the foregoing reasons, both the writ petitions are dismissed. Consequently, connected miscellaneous Petitions are closed. No costs.