Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 1723 (MAD)

. v. .

2019-06-21

P.D.AUDIKESAVALU

body2019
JUDGMENT : 1. The Petitioner is "South Indian Artistes Association" which is governed by the provisions of the Tamil Nadu Societies Registration Act, 1975 (hereinafter referred to as 'the Act' for short). The Office Bearers of the Petitioner were last elected during the election held on 18.10.2015 and they were entitled to hold office for a period of three years ending on 18.10.2018. According to the Petitioner, in the Annual General Body meeting of the Petitioner held on 19.08.2018, it had been unanimously approved by the members who had participated that the existing Office Bearers continue to manage the affairs of the Petitioner for another six months as a huge construction was taking place in the premises belonging to the Petitioner, which was in a crucial stage. As a consequence of that decision, it is claimed that the term of the Office Bearers had stood extended till 18.04.2019. The Executive Committee of the Petitioner in the meeting conducted on 28.04.2019 had requested Hon'ble Mr. Justice E. Padmanabhan, Retired Judge of this Court, to act as Election Officer to conduct election for the next term of the Office Bearers, which he has accepted. In pursuance thereof, the Election Officer issued a notification dated 29.05.2019 for election in which polling is scheduled to be held from 7.00 a.m. to 5.00 p.m. on 23.06.2019 at Dr. MGR-Janaki College of Arts & Science for Women, Raja Annamalai Puram, Chennai-600 028. 2. While the matter stood as narrated supra, the First Respondent by proceedings Na. Ka. No. 6443/E2/2019 dated 13.06.2019 issued show cause notice calling upon the Petitioner to submit explanation by 5.00 p.m. on 17.06.2019 for the complaints received from 62 persons claiming to be members of the Petitioner that they had voted in the previous election but their names have been found to have been removed in the electoral roll for the forthcoming election. No. 6443/E2/2019 dated 13.06.2019 issued show cause notice calling upon the Petitioner to submit explanation by 5.00 p.m. on 17.06.2019 for the complaints received from 62 persons claiming to be members of the Petitioner that they had voted in the previous election but their names have been found to have been removed in the electoral roll for the forthcoming election. In reply to the same, the Petitioner submitted an explanation dated 17.06.2019 pointing out, inter-alia, that 9 of the said persons still continue to be in the electoral roll, 6 of them had been removed due to non payment of dues, 3 of them had been removed on account of disciplinary action taken and 44 of them had forfeited their voting right as they had been changed from the category of professional member to amateur member as they had not given details of their continuity as artistes despite information sought from them and that particulars shown in respect of the remaining person was incorrect. It is also highlighted that the aforesaid change in membership status in respect of those members had been mentioned in the Form VII submitted under Rules 16 and 17 of the Tamil Nadu Societies Registration Rules, 1978, that had been presented by the Petitioner on 15.11.2017 pursuant to the decision taken in that regard in the meeting of its Executive Committee held on 13.08.2017. 3. The First Respondent by proceedings No. 6443/E2/2019 dated 19.06.2019 held that since the Office Bearers of the Petitioner had decided to conduct the election after the tenure of three years had lapsed, it requires to be ascertained as to whether the electoral roll was in order and the matter has to be examined in further detail and in view of those circumstances, it was not conducive to conduct the election for the various post of the Officer Bearers and other Committee members of the Petitioner and till a final decision in the enquiry conducted in the regard is taken, all measures taken for conduct of election shall be ceased. The said order passed by the First Respondent is impugned in this Writ Petition. 4. Heard Mr. E. Omprakash, Learned Senior Counsel appearing for the Petitioner and Mr. P.H. Aravind Pandian, Learned Additional Advocate General assisted by Mr. The said order passed by the First Respondent is impugned in this Writ Petition. 4. Heard Mr. E. Omprakash, Learned Senior Counsel appearing for the Petitioner and Mr. P.H. Aravind Pandian, Learned Additional Advocate General assisted by Mr. T.M. Pappiah, Learned Special Government Pleader, who has taken notice for the Respondents and perused the materials placed on record, apart from the pleadings of the parties. 5. The Learned Senior Counsel appearing for the Petitioner relying on the decision of the Full Bench of this Court in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee vs. District Registrar, Cheranmahadevi, (2005) 2 LW 550 and the decisions of the Division Benches of this Court following the same in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee vs. District Registrar, Cheranmahadevi, (2008) 4 LW 1080 and C. Dharmalingam vs. District Registrar, Madurai, (2010) 3 CTC 390 , strenuously urged that the powers of the Registrar under Sections 34 and 36 of the Act do not comprehend cancellation of election and hence, the impugned order which smacks of mala-fides and is a colourable exercise of power, cannot be sustained, and has sought for immediate stay of operation of the impugned order taking into account the fact that the polling has been scheduled to be held on 23.06.2019 (Sunday). 6. The Learned Additional Advocate General appearing on behalf of the Respondents contended that the Petitioner, viz. South Indian Artistes Association, could not be represented by its General Secretary whose tenure of office had ended on 18.10.2018 and the subsequent claim of extension of office by that person through a resolution of the General Body was contrary to Section 15(4) of the Act, and as such, the Writ Petition itself is not maintainable and in support thereof, he relied on the decision of the Division Bench of this Court in K. Gnanaprakasam vs. Food Corporation of India (South Zone) Employees Co-operative Society Limited, (2013) 2 MLJ 159 . He further contended that the Writ Petition would have to be finally decided after giving opportunity to the Respondents to file Counter Affidavit. 7. Having due regard to the aforesaid submissions made by the Learned Additional Advocate General appearing on behalf of the Respondents, it would not be possible for this Court to finally decide the Writ Petition today when the matter has come up for admission. 7. Having due regard to the aforesaid submissions made by the Learned Additional Advocate General appearing on behalf of the Respondents, it would not be possible for this Court to finally decide the Writ Petition today when the matter has come up for admission. At the same time, taking into consideration the fact that the impugned order has been passed by the First Respondent on 19.06.2019 after the election notification has been issued on 29.05.2019 and the polling is scheduled to be held on 23.06.2019 and today happens to be the last working day before that proposed date of polling, it is incumbent upon this Court to consider the plea for interim relief. 8. The Full Bench of this Court in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee vs. District Registrar, Cheranmahadevi, (2005) 2 LW 550 and the decisions of the Division Benches of this Court following the same in C.M.S. Evangelical Suvi David Memorial Higher Secondary School Committee vs. District Registrar, Cheranmahadevi, (2008) 4 LW 1080 and C. Dharmalingam vs. District Registrar, Madurai, (2010) 3 CTC 390 , have categorically held that it does not fall under the ambit of the powers of the Registrar of Societies under Section 36 of the Act to direct the holding of fresh election on the basis of entries made in Form VII submitted and that so long as the election is not declared as invalid in the manner known to law, no direction for fresh election could be ordered and the validity of the election would have to be decided only by the competent Civil Court after recording evidence of the contesting parties in support of their rival claims. It has also been further held that in the event the Registrar is not satisfied as to the particulars to accept Form VII, he has to address the parties to approach the competent Civil Court and thereafter act as per the orders of the Civil Court. It has also been further held that in the event the Registrar is not satisfied as to the particulars to accept Form VII, he has to address the parties to approach the competent Civil Court and thereafter act as per the orders of the Civil Court. Though the aforesaid binding decisions are sought to be distinguished by the Learned Additional Advocate General that they relate to a stage after the conduct of elections and do not have any application like the present one where the electoral roll prepared for the conduct of the election is questioned, it is not possible to accept that contention as the authoritative pronouncement of the Full Bench of this Court emphatically holds that it is not within the powers of the Registrar to venture into any inter se dispute between a Society and its members as to the validity of the decisions taken by the Committee of the Society and what could be examined by him is only the genuineness of the entries made in Form VII that has been submitted. The Learned Additional Advocate General also contended that the power of the Registrar to act under Sections 34 and 36 of the Act could be exercised suo motu even on the basis of complaints received from few members relying on the decision of this Court in Yadhavar Kalvi Nithi Registered Society vs. State of Tamil Nadu, (2013) 2 CTC 241 . On a perusal of the said decision, there is nothing found empowering the Registrar while exercising such powers to cancel conduct of elections till the enquiry is completed. In that view of the matter, it has to be held that the Petitioner has made out a prima-facie case for considering grant of interim relief that has been sought during the pendency of the Writ Petition. 9. Coming to the objections raised by the Learned Additional Advocate General regarding the maintainability of the Writ Petition, there cannot be any second thought that the Petitioner, viz. the South Indian Artistes Association, which is a legal entity continues to exist and the real question that has to be considered is whether the General Secretary whose tenure of office has ended can claim to continue in office after the lapse of three years prescribed under Section 15(4) of the Act to represent the Petitioner. the South Indian Artistes Association, which is a legal entity continues to exist and the real question that has to be considered is whether the General Secretary whose tenure of office has ended can claim to continue in office after the lapse of three years prescribed under Section 15(4) of the Act to represent the Petitioner. When this Court raised a specific query to the Learned Additional Advocate General to explain as to how the administration of the Society has to be carried out when the tenure of the office of the Office Bearers comes to an end after a period of three years under Section 15(4) of the Act without creating a vacuum, a definite answer could not be given. This aspect of the matter obviously would have to be considered at the time of deciding the Writ Petition and it would not be possible to reject the Writ petition at the threshold on that ground especially when it has not been shown that any other person by operation of law or otherwise is competent to represent the Petitioner in legal proceedings till a new General Secretary is appointed as required under the bye-laws of the Society. 10. The question that now remains for consideration is whether the polling in the election proposed to be conducted on 23.06.2019 could be allowed to proceed despite the impugned order? 11. As already expressed, a prima-facie case has been found to have been made out that the First Respondent acting as Registrar under Section 36 of the Act, does not have power to interfere with the election of a Society. It is informed by the Learned Senior Counsel that a civil suit in C.S. No. 353 of 2019 is pending on the file of the Original Side of this Court in which the removal of some of the members from the electoral roll has been challenged, but no interim order has been granted. In this context, it has to be borne in mind that as per the aforesaid decision of the Full Bench of this Court, disputes raised by a member regarding election has to be decided only by the Civil Court, which binds the Registrar of Societies as well. In this context, it has to be borne in mind that as per the aforesaid decision of the Full Bench of this Court, disputes raised by a member regarding election has to be decided only by the Civil Court, which binds the Registrar of Societies as well. It is brought to the notice of this Court by the Learned Senior Counsel appearing for the Petitioner that a substantial phase of the electoral process has been completed by calling for nominations, completing scrutiny, finalizing list of candidates, printing ballot papers and despatching postal ballots to about 1,000 members who are residing outside Chennai, and the Petitioner has made extensive arrangement for the smooth conduct of the polling on 23.06.2019. As rightly contended by him, it is trite law that an electoral process which has commenced shall not normally be interdicted till it reaches its logical conclusion and as such, it would be highly improper to cancel the election at this distance of time on the basis of entries made in Form VII which has been submitted by the Petitioner to the First Respondent as early as 15.11.2017 during the authorized period of the tenure of the Office Bearers of the Society. It also requires to be taken note that the election is conducted by an Election Officer, who is no less than a retired Judge of this Court and in fact, the Learned Additional Advocate General has also placed on record that the First Respondent has even addressed the said Election Officer by letter dated 19.06.2019 to give his advice and guidance on the finalization of the electoral list, which shows that there is no lack of confidence by the Respondents for the smooth conduct of election in a fair and impartial manner. That apart, the complaints given to the First Respondent has emanated only from minuscule number of 62 persons as against 3172 voters in the electoral roll. When it is contended by the Respondents that the Office Bearers, who were elected on 18.10.2015 could not continue in office after 18.10.2018, it does not stand to reason as to why the election of the next set of Office Bearers should not be expeditiously completed without brooking any further delay. When it is contended by the Respondents that the Office Bearers, who were elected on 18.10.2015 could not continue in office after 18.10.2018, it does not stand to reason as to why the election of the next set of Office Bearers should not be expeditiously completed without brooking any further delay. Above all, the Respondents cannot be prejudiced in any manner by permitting the election to proceed as any illegality found during the enquiry conducted by the First Respondent could always be sought to be rectified by appropriate directions at any point of time. Hence, this Court is of the considered view that expediency demands and balance of convenience certainly lies in allowing the election process to go on till the process of polling is completed and the ballot boxes are kept in safe custody under the supervision of the Election Officer. However, in order to balance equities and ensure that third party interests do not get created in the interregnum, the decision regarding permitting the counting of votes alone would have to be deferred for the time being. 12. It has been brought to the notice of this Court by the Learned Counsel for both sides that there has been another Writ Petition in W.P. No. 16949 of 2019 which is heard by a Learned Judge of this Court where the Petitioner has sought for police protection for conducting the election on 23.06.2019 at the venue at Dr. MGR-Janaki College of Arts & Science for Women, Raja Annamalai Puram, Chennai-600 028 and certain proposals have been made for shifting the venue. As another Learned Judge is already seized of that aspect of the matter, it would not be proper to delve in that regard in this order and it is left open to the parties to approach the Learned Judge for appropriate orders regarding the same. 13. It is made clear that the views expressed by this Court in this order is for the limited for the purpose of deciding the application for interim relief sought and the same shall not affect the rights of any of the parties while deciding the Writ Petition. Further, the order now passed shall be subject to the ultimate outcome of the Writ Petition. 14. Further, the order now passed shall be subject to the ultimate outcome of the Writ Petition. 14. In the result, there shall be an order of interim stay of operation of the impugned order No. 6443/E2/2019 dated 19.06.2019 passed by the First Respondent so as to enable the Petitioner to continue with the electoral process till the stage of polling of votes and keeping the ballot boxes in safe custody. The decision regard counting of the votes shall be taken up by this Court later. 15. Post the matter on 08.07.2019 for further orders. W.P. No. 17583 of 2019 1. Mr. T.M. Pappiah, Learned Special Government Pleader takes notice for the Respondents. 2. As requested by Mr. P.H. Aravind Pandian, Learned Additional Advocate General, the Respondents are permitted to file their Counter Affidavit within two weeks from today. 3. Post the matter on 08.07.2019.